Filed: Jul. 14, 2014
Latest Update: Mar. 02, 2020
Summary: in Puerto Rico by an on-duty police officer, Javier Pagán-Cruz.summary judgment in favor of the supervisory defendants. The plaintiffs', evidence centers entirely on the Cáceres shooting and the officers, involved with it. See Ruiz-Rosa, 485 F.3d at 157;complaints on his PRPD disciplinary record.
United States Court of Appeals
For the First Circuit
Nos. 11-2339, 13-1169
EVELYN RAMÍREZ-LLUVERAS; JENITZA CÁCERES, represented by
Evelyn Ramírez-Lluveras; M.C., represented by Evelyn
Ramírez-Lluveras; M.A.C., represented by
Evelyn Ramírez-Lluveras,
Plaintiffs, Appellees/Cross-Appellants,
v.
EDWIN RIVERA-MERCED; PEDRO TOLEDO-DÁVILA;
LIEUTENANT VÍCTOR CRUZ-SÁNCHEZ; SERGEANT RAFAEL FIGUEROA-SOLÍS;
SERGEANT JUAN COLÓN-BÁEZ,
Defendants, Appellants/Cross-Appellees,
JAVIER PAGÁN-CRUZ; CARLOS SUSTACHE-SUSTACHE; ZULMA DÍAZ;
MIGUEL VÁZQUEZ-SAN ANTONIO; JOHN DOES A-Z, Rep. Employees,
Contractors, or Agents of the P.R. Police Department,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Margarita L. Mercado-Echegaray, Solicitor General, was on
brief, for appellants/cross-appellees.
Judith Berkan, with whom Mary Jo Méndez and Berkan/Méndez were
on brief, for appellees/cross-appellants.
July 14, 2014
-2-
LYNCH, Chief Judge. This tragic case arises out of the
unwarranted shooting death of a civilian, Miguel A. Cáceres-Cruz,
in Puerto Rico by an on-duty police officer, Javier Pagán-Cruz.
Plaintiffs, the victim's surviving wife and children, sued Pagán,
his two fellow officers on the scene, and five supervisors under 42
U.S.C. § 1983 for violating the decedent's Fourth Amendment rights
by causing his wrongful death.
The supervisors initially moved to dismiss the claims
against them under Fed. R. Civ. P. 12(c); that motion was granted
in part and denied in part. See Ramirez-Lluveras v. Pagan-Cruz,
833 F. Supp. 2d 151, 165 (D.P.R. 2011). Later, after discovery,
the five supervisors successfully moved for summary judgment on the
remaining claims against them. See Ramirez-Lluveras v. Pagan-Cruz,
833 F. Supp. 2d 165, 182 (D.P.R. 2011). Afterward, the plaintiffs
prevailed at trial against the defendants Pagán and the two other
on-scene officers, Carlos Sustache-Sustache and Zulma Díaz. The
jury awarded the plaintiffs approximately $11.5 million.
The case now reaches us on two appeals: the plaintiffs'
appeal from the district court's grant of summary judgment in favor
of the supervisory defendants (No. 13-1169) and the supervisory
defendants' appeal from the district court's earlier denial of
their Rule 12(c) motion (No. 11-2339). We affirm the grant of
summary judgment against plaintiffs' supervisory liability claims
against each of the supervisors. We dismiss the Commonwealth's
-3-
appeal from the earlier partial denial of the Rule 12(c) motion as
to these same defendants.
I.
We briefly describe the procedural history before turning
to the facts of the case. On April 28, 2008, the plaintiffs filed
suit under § 1983 against Pagán and his two on-scene colleagues,
Officers Carlos Sustache-Sustache and Zulma Díaz (collectively, the
line officers), and against Col. Edwin Rivera-Merced, the Puerto
Rico Police Department (PRPD) Area Commander for Humacao, as their
supervisor. On March 30, 2009, the plaintiffs amended their
complaint to add the four other supervisory officers as defendants.
However, none of the claims against any of the supervisory
defendants arose from any direct supervision of Pagán on the night
of the shooting or from any personal involvement of the supervisors
with the shooting. The supervisory defendants answered the amended
complaint and set forth a list of forty-one affirmative defenses,
including qualified immunity.
On April 20, 2010, the supervisory defendants filed a
"Motion to Dismiss Amended Complaint and/or for Judgment on the
Pleadings" under Rules 12(b)(6) and 12(c) of the Federal Rules of
Civil Procedure.1
1
For reasons not revealed in the record, neither the court
nor plaintiffs reacted to the motion until the supervisory
defendants asked the court to grant the motion as unopposed on
December 8, 2010. On December 20, 2010, plaintiffs filed an
opposition to the motion.
-4-
The district court granted the motion in part and denied
it in part on September 30, 2011. Specifically, the court
dismissed all of the plaintiffs' § 1983 claims, including the
Fourth Amendment claims, against the supervisory defendants brought
in the plaintiffs' own individual capacities, as opposed to their
capacities as representatives of the victim. It did so based on
its finding that the plaintiffs lacked standing to assert
individual claims because there was no allegation that the
supervisors' conduct was aimed at the family relationship. The
court dismissed all claims under the Fourteenth Amendment. It also
granted the motion as to other claims against the supervisory
defendants in the plaintiffs' representative capacities. It
allowed the § 1983 Fourth Amendment claims against the supervisory
defendants to proceed, declining to resolve their qualified
immunity defense on the pleadings.2 The plaintiffs did not appeal
the dismissal of these claims in the plaintiffs' individual
capacities against the supervisors. The supervisory defendants
appealed from the denial of their motion to dismiss as to the
Fourth Amendment § 1983 claims against them.3
2
The district court also denied the motion to dismiss as to
plaintiffs' supplemental negligence claims under Article 1802 of
the Puerto Rico Civil Code. Neither party presents an argument
about the Article 1802 claim, so those arguments are waived. See
Ortiz v. Gaston Cnty. Dyeing Mach. Co., 277 F.3d 594, 598 (1st Cir.
2002).
3
Because the supervisory defendants had already prevailed on
summary judgment by the time their appeal from the Rule 12(c)
-5-
On December 22, 2011, the district court granted the
supervisory defendants' motion for summary judgment. This left the
claims against the line officers, Pagán, Sustache, and Díaz.
The claims against the line officers went to trial before
a jury in late October 2012. On November 9, 2012, the jury reached
a verdict in favor of the plaintiffs against all three line
officers. After entry of final judgment, the plaintiffs appealed
the grant of summary judgment in favor of the supervisory
defendants.4 The two appeals were consolidated.
II.
The following facts are undisputed, except where noted.
To the extent the facts are disputed, we take them in the light
most favorable to the plaintiffs for purposes of the supervisory
defendants' motion for summary judgment. See Pineda v. Toomey, 533
F.3d 50, 53 (1st Cir. 2008).
A. The August 11, 2007 Shooting
Miguel A. Cáceres-Cruz ("Cáceres"), the victim, was a
member of the Punta Santiago Scooter Club. On the evening of
August 11, 2007, around 6:10 p.m., roughly eleven members of the
decision was processed, we granted plaintiffs' motion to stay that
appeal pending the entry of final judgment in the district court.
4
The summary judgment decision was not immediately appealable
because the case against the line officers remained active.
Plaintiffs first asked the district court to certify the summary
judgment decision to this court for appeal; that request was
denied. Plaintiffs then asked the court to reconsider its summary
judgment decision; that motion was also denied.
-6-
Club brought their scooters to a house for a quinceañero5 at which
they were to serve as an escort for the fifteen-year-old birthday
girl. With the scooters parked on the street, two-way traffic was
obstructed, so Cáceres helped direct cars around the parked
scooters.
One of the cars caught in the traffic was a PRPD Ford
Explorer in which officers Pagán, Sustache, and Díaz were riding.
The officers were not assigned to a patrol in this area, Punta
Santiago, but instead were passing through on their way to a
different area, Naguabo, to which they were assigned to combat drug
trafficking. They did not have any directions to engage in any
actions in Punta Santiago. In fact, the officers passed through
Punta Santiago only because they chose to take a different route to
Naguabo than they had been instructed to take after picking up
Officer Díaz, who had been late for her shift.
When Pagán reached Cáceres's position, he told Cáceres
that only the police have the authority to direct traffic. He also
ordered the club members to move their scooters off the road within
five minutes. What happened next is not entirely clear, although
both parties agree with the general outlines. There is a dispute
over whether the club members actually began moving their scooters.
The parties agree that Pagán and Cáceres began exchanging insults
5
A quinceañero is a traditional coming-of-age birthday party
thrown for girls as they turn fifteen, with rough similarities to
a "sweet sixteen" party.
-7-
and that at some point in the exchange, Díaz told Cáceres that he
was under arrest. A video of the incident shows the three officers
separating Cáceres from his fellow club members. A fight broke
out. The parties dispute who initiated the physical contact, but
they agree that, at some point, Cáceres resisted, hitting both Díaz
and Pagán. Eventually, either the officers drove Cáceres to the
ground or he stumbled to the ground after being hit. Pagán punched
Cáceres in the face while Cáceres was on the ground. Cáceres had
been driven to a seated position on the ground with his back
against a fence. As he sat, he was straddled by Pagán and
surrounded by the other two officers.
From the ground, Cáceres reached up and touched Pagán's
gun holster; the parties dispute whether he was simply reaching for
Pagán's leg while he was trying to stand or whether he was
continuing the fight. Pagán placed his hand on top of Cáceres's
and the two struggled over the gun. Eventually, the gun, still
holstered on Pagán, went off and shot Pagán in his leg. Pagán
pulled away from Cáceres, who slumped from a sitting position to
lying with his stomach on the ground. While Cáceres was still on
the ground, Pagán drew his gun and shot Cáceres multiple times in
the back. After a pause, Pagán shot Cáceres one final time, this
time in the head, administering a coup de grâce. Cáceres died from
the shooting. He was 43 years old at the time. Pagán was 33 years
old, and a 13-year veteran of the PRPD.
-8-
The officers retreated to their car and left the scene.
Díaz then used the police radio to inform a dispatcher that Pagán
was bleeding profusely. She did not mention the shooting of
Cáceres.
There are later events which the plaintiffs discuss at
length as evidence of an alleged cover-up of the shooting.
Specifically, the plaintiffs explain that some of the supervisory
defendants represented to the media that Pagán had clearly been
acting to defend himself against Cáceres's unprovoked aggression.
However, the plaintiffs do not explain how any alleged cover-up
after the shooting would be relevant to their claims, which are
based on a wrongful death theory, since any alleged cover-up would
have occurred after Cáceres had already died. We do not discuss
the cover-up theory. Pagan was dismissed from the PRPD on June 4,
2008.
B. Pagán's Disciplinary History
The plaintiffs' theories of liability against the
supervisory defendants rely heavily on the proposition that Pagán's
disciplinary history provided adequate warning to his supervisors
that he was at substantial risk of committing an unjustified
shooting of an arrestee as an armed officer, and that the
supervisors were deliberately indifferent to this risk. The
plaintiffs then assert theories that various policies and
-9-
procedures interfered with the defendants' taking appropriate
actions on those risks.
Pagán had been the subject of seven disciplinary
complaints before the August 11, 2007 shooting. The first
complaint, in 1998, was for theft of government property (which he
had left in the trunk of his personal vehicle), for which he
received a warning.
The second complaint, and of most significance to this
case, was a set of 1999 domestic violence allegations described in
the official record as follows: "The complainant alleged that after
[complainant] entered into a romantic relationship with [Pagán] he
attacked her because he saw her talking with another officer and he
threatened her with his regulation firearm." The PRPD's initial
investigation of these allegations started immediately and ran
through 2004. In 2004, the PRPD Superintendent released an initial
disciplinary recommendation for termination of Pagán's employment.
After a hearing in which Pagán denied the allegations, the
Superintendent in May 2006 instead ordered discipline of 60 days'
suspension from employment without pay. Pagán served that
discipline between August and October of 2006.
The third complaint was a 1999 insubordination charge,
which was pending at the time Pagán was dismissed from the PRPD
after the August 11, 2007 shooting and was filed for future
reference as a result. A fourth complaint was filed in 2002 for
-10-
Pagán's failure to appear in a local court after being subpoenaed.
Later in 2002, there was a fifth complaint about reporting a "loss"
in a stolen and recovered vehicle report. Sixth, in 2003, Pagán
was charged with failing to take action on a complaint filed by a
citizen; the charge was filed in the record. Finally, in 2004,
there was a complaint for assaulting a motorcyclist, about which
there are no other details in the record. The charge was also
filed in the record.
We return to the domestic violence complaint, which was
considered "substantiated" after the initial investigation, and on
which the plaintiffs' case largely rests. The domestic violence
complaint was based on three incidents beginning in August 1998
involving Pagán's then-girlfriend: (1) in August 1998, after Pagán
saw his girlfriend speaking with another police officer, the
girlfriend alleged that Pagán slapped her, pointed his official
firearm at her, and threatened to kill her if he saw her with
another man; (2) later, the girlfriend also alleged that after she
and Pagán had broken up and she sent Pagán a bill for a beeper she
had bought him as a gift, he "burst" into her home and told her,
"Who the hell asked you to send the beeper and the bill with
Officer Sammy Torres," which upset her; and (3) later, the
girlfriend added the claim that at some earlier time in 1998, Pagán
had stored in her home an arrestee's firearm for three days before
removing it and taking it to the Firearms Division, and that he
-11-
"swore that he was going to kill the arrestee." (Pagán did not
kill the arrestee, nor did he take any steps toward doing so.)
The PRPD promptly investigated the girlfriend's
complaint. On the same day the complaint was filed, the supervisor
on duty interviewed the complainant, went to the District Attorney,
who decided there was no basis to file criminal charges against
Pagán, and notified the PRPD Juncos District Commander of the
administrative complaint. Two days later, a memo was sent from the
Juncos District Commander to the Humacao Area Commander submitting
the domestic violence complaint for consideration. It described
the complaint as follows:
The claimant alleges that she had an intimate
consensual relationship with [Pagán] for
several months. That, during the month of
August and on September 29, 1998, she was
psychologically and verbally abused through
threats made by the same, which would make her
worry.
The memo repeated that the District Attorney had declined to file
charges since he believed no domestic violence in violation of
Puerto Rico law had been committed. The memo also stated that
Pagán's police-issued firearm had been seized and he had been
referred to the Domestic Violence Division in compliance with PRPD
guidelines.
As to the Domestic Violence Division, on December 17,
1998, the Director of the Domestic Violence Division asked that Dr.
Aida Myrna Vélez of the Psychology and Social Work Division give
-12-
priority to a psychological evaluation of Pagán, referencing an
earlier request which had been made on October 19, 1998. There is
no evidence that the psychological evaluation produced any
indication that Pagán was thought to pose a risk to others.
As of August 2000, the PRPD conducted a formal
administrative investigation into the domestic abuse charges. Sgt.
José Berríos Díaz documented his investigation in an August 23,
2000 memo to the Assistant Superintendent responsible for
administrative investigations. The memo characterized the
complainant as being the "victim of verbal and psychological abuse
through threats made by [Pagán]." Evelyn Velázquez, a friend of
the complainant, was interviewed and stated Pagán had "verbally
insulted" the complainant and had threatened the complainant with
death, but that the complainant had never told her that Pagán ever
"physically assaulted her." Velázquez also confirmed that Charlie,
the arrestee whose gun had been kept temporarily at the
complainant's house, had made threats against Pagán. Velázquez
also said that while with Pagán and the complainant, Velázquez had
once "playfully" taken Pagán's gun and pointed it him, "also
playfully," so that he "would learn" what his girlfriend felt when
he had threatened her.
The report stated that "Pagán was interviewed and stated
that what was being said was not true." The investigative report
-13-
concluded that Pagán had committed four serious violations of PRPD
standards of conduct.6
Based upon this report, then-Superintendent Agustín
Cartagena Díaz wrote to Pagán on August 30, 2004, informing him of
the results of the investigation. Based on the girlfriend's
allegations, the letter expressed an intent to expel Pagán from the
PRPD. The letter notified Pagán of his right to a hearing on the
issue.
Pagán requested a hearing, which was held on October 8,
2005. After the hearing, an Associate Police Superintendent,
signing on behalf of Police Superintendent Pedro Toledo-Dávila,
informed Pagán by a letter dated May 18, 2006 that the proposed
expulsion would be converted to a 60-day suspension without pay.
Importantly, the May 18, 2006 letter stated: "After evaluating the
record we have determined that the sanction announced in the
6
The violations were:
Serious Offense #1: "Show a patent inability,
incompetence, carelessness, partiality or negligence in
the performance of his or her duties, functions and
responsibilities."
Serious Offense #3: "Leave police-issued firearms or any
other firearm carried or possessed under a permit at the
reach of other persons who are not authorized to use them
or allow others to use them, or failing to take the
corresponding measures in relation to them."
Serious Offense #2: "Threaten with, or use, a firearm
against any person, except when defending oneself or
others.["]
Serious Offense #27: "Acting in a damaging, immoral or
disorderly manner to the detriment of the Police
Department."
-14-
Resolution of Charges must be modified. In consequence I suspend
you from employment and pay for the term of sixty (60) days
effective on the date of notification for this communication"
(emphasis added).
Pagán apparently did not appeal that decision. Pagán
served the suspension without pay between August and October 2006.
This was eight years after the underlying domestic abuse events had
occurred. It was one year before the shooting. There were no
other domestic violence charges aside from those arising out of the
events in 1998.
On November 4, 2004, Pagán was reassigned by the Humacao
Area Commander to the Special Response Team of the Tactical
Operations Division (TOD), an "elite unit" trained "to deal with
sensitive situations."
C. The Identity and Role of the Supervisory Defendants
The plaintiffs originally sued Col. Edwin Rivera-Merced,
Humacao Area Commander, as the supervisor of the three line
officers. The plaintiffs later added another four supervisors at
various levels in the Puerto Rico police department: Superintendent
Pedro Toledo-Dávila, Lt. Víctor Cruz-Sánchez, Sgt. Rafael
Figueroa-Solis, and Sgt. Juan Colón-Báez.
On the date of the shooting in August 2007, the chain of
command above Pagán was as follows. Sgt. Colón-Báez was serving as
Acting Director of the TOD while Sgt. Figueroa-Solis, its regular
-15-
Acting Director at the time, was on vacation. In that temporary
position, Sgt. Colón-Báez had Pagán and another thirty or so
officers in the TOD under his supervision. Sgt. Colón-Báez was in
turn supervised by Lt. Cruz-Sánchez, the officer in charge of the
Humacao area. He reported to Col. Rivera-Merced, the Humacao Area
Commander who oversaw 400 to 500 officers, and Col. Rivera-Merced
reported to Superintendent Toledo-Dávila, who was the highest
ranking officer in the entire PRPD.
1. Superintendent Toledo-Dávila
Toledo-Dávila, now deceased, was the Police
Superintendent of the PRPD at the time of the shooting, serving
from 1993 to 2000 and again from 2005 to 2008. This is the highest
position in the PRPD, which had thousands of officers in its
service.
The plaintiffs alleged that Superintendent Toledo-Dávila
instituted policies making it difficult for lower-level supervisors
to become aware of officers' offenses by removing the facts about
the offenses from their disciplinary memoranda. As to personal
supervisory involvement with Pagán, Toledo-Dávila was the
superintendent who set Pagán's sanction for the domestic violence
complaint at a 60-day suspension in 2006 after the hearing, a
lighter punishment than the initial pre-hearing recommendation of
expulsion. Superintendent Toledo-Dávila is not alleged to have had
-16-
any direct involvement with, or even direct supervisory
responsibility over, Pagán's actions on August 11, 2007.
2. Col. Rivera-Merced
Col. Rivera-Merced was the Area Commander of the Humacao
area, which is where Pagán served on the day of the shooting. In
that role, Col. Rivera-Merced oversaw about 400 to 500 police
officers. The plaintiffs claim that Col. Rivera-Merced knew about
Pagán's 2006 suspension because he had personally "processed" it,
and that he was responsible for assigning Pagán to the TOD. Col.
Rivera-Merced also had the authority to refer officers under him to
counseling and to receive fitness-for-duty recommendations. The
plaintiffs' primary allegation against Col. Rivera-Merced is that
upon Pagán's return from the 2006 suspension, he immediately placed
Pagán back into the "elite" TOD without meaningfully considering
Pagán's fitness for that unit.7 The plaintiffs also argue that
Col. Rivera-Merced failed to assign an adequate number of
supervisors to the TOD. There is no claim that Col. Rivera-Merced
had directly supervised Pagán on the day of the shooting; indeed,
there were several layers of supervisory personnel between Col.
Rivera-Merced and Pagán, and Rivera-Merced was not on duty on
August 11, 2007.
7
The dissent faults Lt. Cruz-Sánchez for the fact that he
"took Pagán right back in to the TOD," even though that decision
was made by Col. Rivera-Merced. Lt. Cruz-Sánchez's decision not to
countermand his superior cannot be a basis for finding him liable.
-17-
3. Lt. Cruz-Sánchez
Lt. Cruz-Sánchez was the Director of the TOD in Humacao
through March 2007, when he was elevated to Commander of the
Humacao precinct. In his role as TOD Director, Lt. Cruz-Sánchez
oversaw about 30 officers. Lt. Cruz-Sánchez evaluated Pagán a few
months after his return from the suspension and "gave him glowing
ratings." These high ratings may have been given in part because
he gave all of his subordinates high ratings and pro forma
evaluations.
The plaintiffs allege Lt. Cruz-Sánchez was directly
responsible for selecting line officer Díaz for the TOD and did so
without reviewing her personnel file. But there is no claim that
had he reviewed the file, Lt. Cruz-Sánchez would have had reason to
believe Officer Díaz would pose a substantial risk to civilians;
moreover, Díaz was not the shooter. Lt. Cruz-Sánchez also had
direct knowledge of Pagán's suspension but did not know its cause;
he later testified that he thought Pagán had been suspended for
mishandling an investigation. There is no claim that Lt.
Cruz-Sánchez was directly supervising Pagán at the time of the
shooting.
4. Sgt. Figueroa-Solis
Sgt. Figueroa-Solis was a supervisor in the TOD and was
promoted to Acting Director in March 2007 after Lt. Cruz-Sánchez's
promotion to precinct commander. There were no other ranked
-18-
supervisors in the TOD while Sgt. Figueroa-Solis was Acting
Director. Sgt. Figueroa-Solis went on vacation in July and August
2007 and was out of town on the date of the shooting; during that
time, Sgt. Colón-Báez served as Acting Director. The plaintiffs
allege that Sgt. Figueroa-Solis did not review the disciplinary
files of his subordinates -- arguably against department
requirements, although his status as "Acting" Director makes the
precise requirement unclear. He also did not review Pagán's record
when Pagán entered the TOD; the plaintiffs allege it is reasonably
clear that he would have been expected to do so to make sure that
the new officer was fit for the assignment. Sgt. Figueroa-Solis
was the individual who notified Pagán about his proposed expulsion
in 2004, but he was not familiar with the complaint underlying the
proposal. He was also responsible along with Sgt. Colón-Báez for
choosing Sustache and Pagán for the Impact Unit within the TOD.
Because he was on vacation on August 11, 2007, Sgt. Figueroa-Solis
was not directly supervising Pagán at the time of the shooting.
5. Sgt. Colón-Báez
Finally, Sgt. Colón-Báez was Lt. Cruz-Sánchez's assistant
while the latter was director of the TOD. He remained Lt.
Cruz-Sánchez's assistant upon Lt. Cruz-Sánchez's promotion to
precinct commander in early 2007, but returned to the TOD as Acting
Director while Sgt. Figueroa-Solis was on vacation in July and
August of 2007. He shared responsibility with Sgt. Figueroa-Solis
-19-
for placing Sustache and Pagán on the Impact Unit. Sgt. Colón-Báez
was the person who actually served Pagán with his suspension notice
in 2006. He was aware that the suspension was related to domestic
violence but made no further inquiries.8 Sgt. Colón-Báez was
Pagán's direct superior on the night following the shooting, but he
had no direct involvement with the actual events leading up to the
shooting, nor did he give any assignments to Pagán leading to the
shooting. In fact, Sgt. Colón-Báez was on his day off on August
11, 2007.
III.
We begin with the plaintiffs' appeal of the grant of
summary judgment in favor of the supervisory defendants. We review
the district court's grant of summary judgment de novo, reading the
facts and drawing all inferences in the light most favorable to the
plaintiffs. See Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir. 2008).
Summary judgment is proper if there is no genuine dispute of
material fact and the defendants are entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a).
A. Supervisory Liability Under § 1983
The defendants strongly urge that this case be used as a
vehicle to recast the contours of supervisory liability in the
8
The dissent assumes that Sgt. Colón-Báez "kn[ew] full well
of Pagán's violent past," but we see nothing in the record to
support that speculation. The dissent goes on to say that Sgt.
Colón-Báez did not review Pagán's disciplinary file, "which would
have uncovered" that "violent past."
-20-
aftermath of Ashcroft v. Iqbal, 556 U.S. 662 (2009). We see no
reason to do so or to address what is a hypothetical argument. The
plaintiffs' case against the supervisors simply is insufficient to
meet this circuit's standards as articulated before and reinforced
after Iqbal.
There are a number of clear rules governing supervisory
liability under § 1983. First, the subordinate's behavior must
have caused a constitutional violation, although that alone is not
sufficient. See, e.g., Welch v. Ciampa, 542 F.3d 927, 937 (1st
Cir. 2008); Sanchez v. Alvarado,
101 F.3d 223, 227 (1st Cir. 1996).
Here, there is a jury verdict establishing Pagán's and the other
two officers' violation of constitutional rights.
Additionally, the tort theory of respondeat superior does
not allow imposition of supervisory liability under § 1983. See,
e.g., Grajales v. P.R. Ports Auth., 682 F.3d 40, 47 (1st Cir.
2012). Proof that the supervisors were negligent is also
insufficient. See, e.g., Ramos v. Patnaude,
640 F.3d 485, 490 (1st
Cir. 2011); Febus-Rodriguez v. Betancourt-Lebron,
14 F.3d 87, 92
(1st Cir. 1994) ("[A] supervisor cannot be held liable for merely
negligent acts."). Further, § 1983 liability cannot rest solely on
a defendant's position of authority. Ocasio-Hernández v. Fortuño-
Burset, 640 F.3d 1, 16 (1st Cir. 2011) (citing Ayala-Rodríguez v.
Rullán,
511 F.3d 232, 236 (1st Cir. 2007)).
-21-
After Iqbal, as before, we have stressed the importance
of showing a strong causal connection between the supervisor's
conduct and the constitutional violation. See Feliciano-Hernández
v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) ("[A]
supervisor may not be held liable for the constitutional violations
committed by his or her subordinates, unless there is an
affirmative link between the behavior of a subordinate and the
action or inaction of the supervisor . . . such that the
supervisor's conduct led inexorably to the constitutional
violation." (alterations in original) (quoting Soto-Torres v.
Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)) (internal quotation
marks omitted)). The showing of causation must be a strong one, as
that requirement "contemplates proof that the supervisor's conduct
led inexorably to the constitutional violation." Hegarty v.
Somerset Cnty.,
53 F.3d 1367, 1380 (1st Cir. 1995) (emphasis
added).
In addition, the supervisor must have notice of the
unconstitutional condition said to lead to the claim. Feliciano-
Hernández, 663 F.3d at 533 ("[T]he plaintiff must show that the
official had actual or constructive notice of the constitutional
violation." (quoting Rodríguez-García v. Miranda-Marín, 610 F.3d
756, 768 (1st Cir. 2010)) (internal quotation marks omitted));
id.
at 535 ("Actual or constructive knowledge of a rights violation is
a prerequisite for stating any claim.").
-22-
A plaintiff may prove causation by showing a "known
history of widespread abuse sufficient to alert a supervisor to
ongoing violations." Maldonado-Denis v. Castillo-Rodriguez, 23
F.3d 576, 582 (1st Cir. 1994). However, proof of that sort must
truly show "widespread" abuse; "isolated instances of
unconstitutional activity ordinarily are insufficient . . . to show
deliberate indifference."
Id.
Turning from causation to what it means to be
deliberately indifferent, we have typically formulated the
deliberate indifference inquiry as a three-part test that requires
plaintiffs to show: (1) "that the officials had knowledge of
facts," from which (2) "the official[s] can draw the inference" (3)
"that a substantial risk of serious harm exists." Ruiz-Rosa v.
Rullán,
485 F.3d 150, 157 (1st Cir. 2007) (alteration in original)
(quoting Calderon-Ortiz v. Laboy-Alvarado,
300 F.3d 60, 65 (1st
Cir. 2002)) (internal quotation marks omitted); see also Bowen v.
City of Manchester,
966 F.2d 13, 17 (1st Cir. 1992).
B. Application of Supervisory Liability Standards
The strongest of the plaintiffs' arguments9 depends on
9
We dispose quickly of a side argument. The plaintiffs have
not pointed to any evidence of "widespread" abuse that would have
alerted the supervisors to "ongoing" systemic constitutional
violations. See Maldonado-Denis, 23 F.3d at 582. The plaintiffs'
evidence centers entirely on the Cáceres shooting and the officers
involved with it. Without evidence of "widespread" abuse and
"ongoing" constitutional violations, the plaintiffs' case cannot
survive summary judgment on a systemic abuse theory. See id.; see
also Estate of Bennett v. Wainright,
548 F.3d 155, 178 n.7 (1st
-23-
the theory that Pagán's disciplinary record, especially as to the
substantiated complaints of domestic violence, should have led the
supervisory defendants to have knowledge of facts from which they
would have inferred that Pagán posed a substantial risk of doing
serious harm to others. This should have prompted them to take
action, other than what they did do, to prevent such harm. The
plaintiffs also build on this central claim by alleging that
various defendants were deliberately indifferent to the PRPD's
inadequate procedures for reviewing and disseminating disciplinary
records. If Pagán's disciplinary record was insufficient on
causation -- that is, if it was not sufficient to put the
supervisory defendants on notice of substantial risk of serious
harm to others -- then these allegations about inadequate
procedures are beside the point.
The plaintiffs also make some weak claims unrelated to
Pagán's disciplinary record. They allege there were insufficient
procedures for reviewing officer-involved shootings. But, as the
plaintiffs' expert explained, neither Pagán nor the two other
officers at the scene had shot anyone before and so the causal link
fails. To the extent the plaintiffs show there was an unrelated
shooting elsewhere that Pagán had witnessed roughly a week before,
Cir. 2008) (holding evidence insufficient to qualify as widespread
under Maldonado-Denis when plaintiff produced evidence that officer
who fatally shot mentally ill victim had previously shot another
mentally ill individual).
-24-
there was no causal relationship to Pagán's shooting in entirely
different circumstances on August 11, 2007.
1. Claimed Deliberate Indifference to Pagán's
Disciplinary Record
Pagán's disciplinary record evidenced seven instances of
alleged misconduct over a nearly fourteen-year period. That record
was not sufficient to put supervisors on notice that he presented
a "substantial," "unusually serious," or "grave risk" of shooting
an arrestee. See Ruiz-Rosa, 485 F.3d at 157; Figueroa-Torres v.
Toledo-Dávila,
232 F.3d 270, 279 (1st Cir. 2000);
Bowen, 966 F.2d
at 17; accord Camilo-Robles v. Hoyos,
151 F.3d 1, 7 (1st Cir.
1998). Nor did it give notice he required discipline beyond that
already given to him.
We do not discount the seriousness of the domestic
violence allegations. We think the commission of these acts by
Pagán against his girlfriend is indeed relevant to whether Pagán
could be thought to pose a threat of violence to others when he was
on official duty. We disagree with the proposition that private
domestic abuse is not relevant to the risk of an officer abusing
his public position with violence. Nonetheless, in light of all of
the facts here, the causal connection the plaintiffs attempt to
draw is insufficient as a matter of law to impose supervisory
liability even on those supervisors who knew of the content of
Pagán's disciplinary record, much less on those who did not know.
-25-
The domestic abuse events took place in 1998, nearly nine
years before the shooting. The complaint about them was handled
seriously by the PRPD. The PRPD investigation found that Pagán had
made verbal threats and made threats using his weapon, but did not
find he had acted on those threats or inflicted physical harm on
others, much less used his weapon to shoot anyone. Further, Pagán
was promptly sent for evaluation by the Domestic Violence unit, his
firearm was taken away, and he was suspended. Once Pagán and the
complainant's relationship ended, there were no other domestic
abuse complaints filed against Pagán. Importantly, while Toledo-
Dávila had recommended termination based only on the pre-hearing
allegations, that recommendation was not deemed suitable after
Pagán was given a hearing. Indeed, Toledo-Dávila said the evidence
at the hearing compelled that reduction of the discipline to a
suspension for a period of time. Pagán did receive significant
discipline after the hearing: a sixty-day suspension without pay.
A reasonable official would think that suspension would have a
deterrent effect. Indeed, the handling of the charges in a serious
manner seemed to have that effect, for there were no other domestic
abuse claims made against Pagán after the charges were brought.
This evidence is simply insufficient to show the needed causal
relationship between the 1998 domestic abuse complaint and the
August 11, 2007 shooting. Even after thoroughly investigating the
complaint, the PRPD Superintendent did not conclude that the events
-26-
showed that Pagán was too dangerous to be in a position in which he
would encounter civilians. The record does not evidence any causal
link between the two events.
Only a single other item in Pagán's record -- a complaint
about assaulting a motorcyclist in 2004 -- revealed any additional
potential tendency of violence toward civilians.10 But the record
does not show that this complaint was substantiated in any way, nor
does it give any information about the contents of the complaint.
These instances simply do not rise to the level of a
"substantial" or "unusually serious" risk of shooting a civilian
that the case law demands. Cf. Barreto-Rivera v. Medina-Vargas,
168 F.3d 42, 49 (1st Cir. 1999) (finding deliberate indifference to
grave risk of violence based on disciplinary record including
thirty incidents of abuse of power, unlawful use of force, or
physical assault, with six incidents generating recommendations of
expulsion). In contrast to the grave risk presented in
Barreto-Rivera, the disciplinary record here showed no prior
incidents of Pagán's assaulting arrestees or shooting his weapon
unjustifiably, across more than a decade of Pagán's police service.
10
The dissent counts four "particularly violent" episodes of
misconduct in Pagán's file, presumably counting each of the three
domestic violence incidents separately and ignoring the fact that
the allegations regarding the motorcyclist were not substantiated.
But parsing out the individual events would have been impossible
for the two supervisors the dissent would hold liable, since, as
the plaintiffs themselves argue, the disciplinary file did not
include the underlying facts of the prior incidents.
-27-
Without such a record, the supervisory defendants cannot be said to
have ignored a grave risk of harm.11 The remaining theories of
liability largely depend on the assertions that the supervisory
defendants' failure to take action based on Pagán's disciplinary
record met the causation requirement, which we have rejected.
2. Insufficient Procedures for Reviewing Disciplinary
Records
The plaintiffs next argue that Sgt. Figueroa-Solis's
failure to review Pagán's record at the time Pagán joined the TOD
was causally related to the shooting, that lower-level supervisors
frequently failed to review disciplinary records at the relevant
times, and that the records did not contain enough information to
allow lower-level supervisors to meaningfully review their
subordinates' records.12
11
The dissent expresses concern that our ruling allows the
police a "free bite at the apple." Not so. A supervisor who has
knowledge of and deliberately ignores a subordinate's history of
violent events may well be liable for that subordinate's later
violent acts, even if they are of a different kind than the past
acts. What distinguishes this case is not the fact that Pagán's
disciplinary record showed off-duty domestic violence rather than
assaulting a civilian while on duty. Rather, it is the fact that
the single domestic violence complaint on this record -- which was
from nearly nine years before the shooting, was meaningfully
investigated, led to meaningful sanctions, and was followed by no
repeat behavior -- is far from sufficient to establish that Pagán
had the "violent tendencies" the dissent ascribes to him, or to
establish that his supervisors should have known he posed a "grave
risk" of violence toward civilians in 2007.
12
The dissent assumes that a proper review of the disciplinary
files would have revealed that Pagán was unfit for duty, ignoring
the plaintiffs' own argument that the files did not include enough
information to allow lower-level supervisors to make that
-28-
These alleged errors plainly fail on the causation prong,
and so we need not decide whether this theory is actually one of a
constitutional violation. Even if Sgt. Figueroa-Solis had reviewed
Pagán's file at the appropriate time, the file would not have
demonstrated that Pagán had a proclivity for violence or was unfit
for duty. It is true that a policy change instituted by
Toledo-Dávila removed the details of the offense from the file
memoranda imposing the disciplinary measures. But this policy
change itself creates no liability with respect to Toledo-Dávila.
That argument, which the plaintiffs have not substantially
developed, fails on the substantial risk prong. The plaintiffs
have produced no evidence to show that this policy created a
substantial risk of subordinate officers' violating the
constitutional rights of arrestees.
The plaintiffs argue that the PRPD's failure to punish
seriously Pagán's past disciplinary violations amounted to
supervisory condonation of his practices. But there is no showing
he posed a substantial risk, much less that his suspension was
inadequate to the offense. The plaintiffs' argument also fails
because it depends on the inference that insufficient sanctioning
determination. Moreover, to the extent that the dissent argues
that a more thorough review would have found Pagán unfit for
service on the Impact Unit in particular -- as appears to be the
dissent's primary complaint against Sgt. Colón-Báez -- the dissent
never explains how the decision to place Pagán on the Impact Unit
was causally related to the shooting.
-29-
for past problems led Pagán to believe that he could get away with
more bad acts -- literally, murder. Under Febus-Rodriguez v.
Betancourt-Lebron, 14 F.3d 87 (1st Cir. 1994), that argument cannot
save the plaintiffs' case. See
id. at 94 (explaining that it is
"simply too tenuous" to draw an inference that "because Officer
Rodríguez had not been sanctioned with respect to [his past] five
[disciplinary] incidents, he believed he could get away with
anything, including assaulting Febus"). More direct proof of
causation is needed, and the record provides none.
3. Insufficient Procedures for Reviewing
Officer-Involved Shootings
The plaintiffs next argue that the supervisory defendants
did not ensure that sufficient procedures were in place for
reviewing officer-involved shootings. This argument does not turn
on Pagán's personal characteristics but is generic.
The plaintiffs urge us to infer that, had Pagán and his
companions known that a meaningful investigation would follow any
shooting they might commit, Pagán would have been less likely to
shoot Cáceres. The plaintiffs sharpen this theory by arguing that
if more had been done about another shooting, which they argue
Pagán witnessed, that would have deterred him from shooting
Cáceres. On August 5, 2011, the week before Pagán's shooting of
Cáceres, Pagán and Sustache were on duty at a youth festival at
which another officer shot a 21-year-old several times, killing
him. The plaintiffs allege that Pagán witnessed that shooting but
-30-
was not interviewed in any subsequent investigation. This theory
twice fails: it tries to prove causation using only negligence, and
the causal link between that negligence and the Cáceres shooting is
entirely speculative. We have already held that such a theory,
even on much stronger facts, was "simply too tenuous" to support
recovery. Febus-Rodriguez, 14 F.3d at 94.
IV.
We next turn to the supervisory defendants' appeal of the
district court's denial of their earlier motion to dismiss
plaintiffs' § 1983 claims for qualified immunity.
The summary judgment in defendants' favor moots the
qualified immunity issue. We decline to offer a hypothetical
opinion on the qualified immunity issue in this case.
V.
For the foregoing reasons, the district court's grant of
summary judgment, at issue in No. 13-1169, is affirmed. The appeal
in No. 11-2339 is dismissed. No costs are awarded.
So ordered.
- Dissenting Opinion Follows -
TORRUELLA, Circuit Judge, concurring in part, dissenting
in part. Considering the evidence on record, and drawing all
reasonable inferences in favor of the non-moving plaintiffs, I
believe the majority judges are incorrect in affirming the grant of
-31-
summary judgment as to all supervisory defendants. Though a close
call, I find there are questions of material fact regarding the
supervisory liability of Cruz-Sánchez and Colón-Báez that have
improperly been kept from a jury.13
Specifically, I believe there are questions of fact on
whether officers Cruz-Sánchez and Colón-Báez were on notice of
Pagán's seriously violent tendencies. I also believe it should be
up to a jury to determine whether the failure of these supervisory
officers to take any measures to prevent or at least mitigate the
grave risk that Pagán posed to the constitutional rights of others
is causally related to the shooting death of Cáceres. Accordingly,
I respectfully dissent.
I. Background
Review of a district court's grant of summary judgment is
de novo. Euromodas, Inc. v. Zanella, Ltd., 368 F.3d 11, 16 (1st
Cir. 2004). In conducting this review, we draw all reasonable
inferences in favor of the non-moving party. Collazo v. Nicholson,
535 F.3d 41, 44 (1st Cir. 2008). "Summary judgment is appropriate
where there exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law."
Id.
A. Pagán's record and appointment to the TOD and the IU
13
I agree with the majority's opinion as to the remaining
defendants on appeal.
-32-
Prior to fatally shooting Cáceres, Pagán had seven
complaints on his PRPD disciplinary record. These included a
complaint for insubordination, one for domestic violence, and one
for assault on a motorcyclist. The latter was, however, found to
be unsubstantiated by the PRPD. The plaintiffs have provided some
form of proof for each of the seven complaints.
The plaintiffs' argument rests in large part on the
domestic violence complaint, filed by Pagán's then girlfriend,
which itself encompassed three acts of serious violence and police
impropriety by Pagán in 1998. In the first incident, Pagán struck
his girlfriend and, while brandishing his firearm, threatened her
with death. In the second incident, Pagán visited his girlfriend's
home carrying a gun he had taken from an arrestee. He brandished
the gun and swore he would kill the arrestee whom the weapon
belonged to. He then stored the weapon at his girlfriend's
apartment for a few days. Finally, after their relationship had
ended, Pagán stormed into his ex-girlfriend's apartment and once
again assaulted and threatened her.
The PRPD's investigation of the domestic violence
complaint filed by Pagán's girlfriend began in 1998. Pagán did not
receive a sanction, however, until August 2004, when then
Superintendent Agustín Cartagena ordered his expulsion from the
force. While the order of expulsion against Pagán was pending,
Cruz-Sánchez promoted Pagán to the Humacao Tactical Operations
-33-
Division ("TOD"). Cruz-Sánchez was Director of the TOD at the
time. The TOD is a specialized team of "elite" officers within the
PRPD who receive additional training for particularly sensitive
situations. Cruz-Sánchez did not assess Pagán's disciplinary
history before promoting Pagán to the TOD.
In early 2005, defendant Toledo-Dávila took on the job of
Superintendent, and in December 2005, he reissued Pagán's order of
expulsion. After Pagán sought internal administrative review of
this sanction, Toledo-Dávila reduced his punishment to a sixty-day
suspension without pay. Colón-Báez served Pagán the suspension
papers.
Pagán served his suspension from August 23 to October 22,
2006. At that time, Cruz-Sánchez was still Director of the TOD,
with Colón-Báez as Assistant Director. Upon completion of his
suspension, Pagán immediately rejoined the TOD. Though PRPD
regulations require that officers coming back from suspension be
sent initially to Replacement Centers, none of the supervising
officials took any action to transition Pagán back into service.
In January 2007, shortly after Pagán served his suspension, Cruz-
Sánchez evaluated Pagán and gave him stellar reviews. He admits he
did so without reviewing Pagán's disciplinary file, or otherwise
investigating his disciplinary history. This evaluation was seven
months before the shooting of Cáceres.
-34-
A few months later in the summer of 2007, defendant
Rivera-Merced, a high ranking PRPD official, sought to create a
specialized Impact Unit ("IU") within the TOD, for intervention in
high crime areas. Cruz-Sánchez developed the operational plan for
the IU, and Colón-Báez hand-picked Pagán for the unit; Pagán was
again promoted. Neither Cruz-Sánchez nor Colón-Báez reviewed
Pagán's disciplinary file or otherwise probed his disciplinary
background before accepting Pagán into the IU.
B. The murder of Cáceres and the immediate aftermath
I will spare the details of Cáceres's execution. Suffice
it to say that the shooting was caught on video and the
circumstances surrounding it are not in dispute.
Immediately after the murder of Cáceres, Pagán and the
two other defendant line officers who were present at the shooting
left for Ryder Hospital nearby in Humacao. The first to arrive on
the scene of Cáceres's murder was Detective Rodríguez, who is not
a party to this suit. After speaking to a number of witnesses,
Detective Rodríguez described the incident to Cruz-Sánchez,
apparently over the phone or radio. Cruz-Sánchez was the highest
ranking officer in the Humacao area that evening. Detective
Rodríguez told Cruz-Sánchez that he had no doubt the officers had
abused their power. Detective Rodríguez prepared a report of the
incident, essentially relaying that Pagán shot Cáceres four times
-35-
while the latter lay on the ground, and expressing his view that
the use of deadly force was entirely uncalled for.
Meanwhile, as Detective Rodríguez was investigating the
scene of the crime, Cruz-Sánchez joined Pagán at Ryder Hospital.
Colón-Báez, even though he was not on duty that evening, also
joined Cruz-Sánchez and Pagán at the hospital.
As Cruz-Sánchez spoke to Pagán and the other defendant
line officers for their version of events, other eyewitnesses of
the shooting began to arrive at the hospital and offered their own
account of what had transpired: that Cáceres had been shot dead
while lying defenseless on the floor. By this time, Detective
Rodríguez had already apprised Cruz-Sánchez that an act of police
brutality had occurred.
Notwithstanding clearly contradictory accounts from other
eyewitnesses, the report that resulted from information retold by
Cruz-Sánchez and Colón-Báez, adopted the version of Pagán, his
companion officers and that of an Héctor Huertas, the only
bystander identified by name in the report, and, coincidentally,
the only witness who gave a view of the events that was favorable
to Pagán. As to the numerous accounts unfavorable to the officers,
the report merely notes that "several persons, were interviewed at
the scene" who "provided information that was adverse and against
the agents." A few days later, Cruz-Sánchez himself added
information to the report related to the identity of witness Héctor
-36-
Huertas and noted that the latter's version coincided in part with
that of Pagán. Cruz-Sánchez noted that this corroboration
compelled him to believe Pagán's version of the incident: that
Cáceres had turned violent, attempted to wrestle his gun from him,
and "several shots were fired" in the skirmish that ended in
Cáceres's death.
The accuracy of Cruz-Sánchez's report of the events of
August 11, 2007 came under serious doubt shortly thereafter when,
thanks to a bystander who video-recorded the incident, the
execution of Cáceres was aired on the evening news a few days
later.
C. PRPD General Order 87-14
PRPD General Order 87-14 ("G.O. 87-14") requires
officials in supervisory positions to examine the personnel file of
each and every officer under their supervision. According to G.O.
87-14, supervisors must assess whether an officer in their unit is
of violent character or holds the potential to commit civil rights
violations. A supervisor must make this independent assessment
whether or not there are substantiated complaints against the
officer. G.O. 87-14 mandates that prior conduct of, and complaints
against, the officer must be assessed in light of the underlying
facts of the incident, and not on the ultimate result of the
complaint.
-37-
II. Discussion
A supervisory official may be found liable under 42
U.S.C. § 1983 for actions of his own that result in violations of
constitutional rights by a subordinate. Camilo-Robles v. Hoyos,
151 F.3d 1, 6-7 (1st Cir. 1998). A supervisor "may be liable for
the foreseeable consequences of such conduct if he would have known
of it but for his deliberate indifference or willful blindness."
Maldonado-Denis v. Castillo-Rodríguez,
23 F.3d 576, 582 (1st Cir.
1994). To prevail on a theory of deliberate indifference, "a
plaintiff must show (1) a grave risk of harm, (2) the defendant's
actual or constructive knowledge of that risk, and (3) his failure
to take easily available measures to address the risk." Figueroa-
Torres v. Toledo-Dávila,
232 F.3d 270, 279 (1st Cir. 2000)
(internal quotation marks omitted). Liability does not attach on
a showing of deliberate indifference alone, however; there must be
an affirmative link between the subordinate's misconduct and the
action, or inaction, of supervisory officials. See
Id. This causal
connection "need not take the form of knowing sanction, but may
include tacit approval of, acquiescence in, or purposeful disregard
of, rights-violating conduct."
Hoyos, 151 F.3d at 7 (citing
Maldonado-Denis, 23 F.3d at 582 (explaining that the supervisor
must have "had the power and authority to alleviate [the
violation]")).
-38-
To be sure, both Cruz-Sánchez and Colón-Báez dispute some
aspects of plaintiffs' version of the facts. All the more reason
to conclude that, on this record, summary judgment in favor of
Cruz-Sánchez or Colón-Báez was inappropriate.
As to their knowledge -- deemed or otherwise -- of
Pagán's violent tendencies, there is arguably some dispute as to
whether G.O. 87-14 had been suspended, and when exactly this
suspension might have happened. Cruz-Sánchez testified, however,
that as a supervisor he was responsible for reviewing the
disciplinary files of officers under his supervision. This is
consistent with the testimony of defendant Superintendent Toledo-
Dávila, who stated that all supervisors were charged with the
responsibility of reviewing subordinates' personnel files. Colón-
Báez claims that he had no access to Pagán's disciplinary file,
though there is also some dispute as to that. These questions turn
on an assessment of credibility and, accordingly, are best left for
the jury to answer.
Moving on to the pudding, one defendant at a time, Cruz-
Sánchez was a lieutenant and former Director of the TOD, and he
personally promoted Pagán to the TOD in 2004. At that time, there
was a pending expulsion order against Pagán. Though plaintiffs
dispute the claim, Cruz-Sánchez claims he was unaware of the
pending expulsion order. Cruz-Sánchez did admit that, though he
was required to do so, he did not review Pagán's disciplinary file.
-39-
Even assuming that he did not know the nature or the extent of the
violations that led to Pagán's pending expulsion order, that G.O.
84-17 required him to review Pagán's file -- a requirement he
admittedly knew of -- should have compelled him to review the file.
It is clearly a question for the jury whether this circumstance is
deemed to put Cruz-Sánchez on notice of Pagán's violent character.
Later, Cruz-Sánchez again had the opportunity to keep
Pagán from a position where he posed a danger to civilians, but
remained idle. In October of 2006, upon completion of a sixty day
suspension, Cruz-Sánchez took Pagán right back into the TOD.14 He
again neglected to review Pagán's disciplinary file, despite the
fact that he was aware that Pagán had just served a considerable
sanction. Two to three months later in January 2007, again
neglecting to review Pagán's file or otherwise inquire into his
disciplinary history, Cruz-Sánchez evaluated Pagán and gave him
stellar reviews, with high marks on the category of self-control.
Seven months later, Cáceres lay dead on the ground. In fact, Cruz-
Sánchez had perhaps one more opportunity to take action. And it
14
The majority judges contend that it was Rivera-Merced's
decision to accept Pagán back into the TOD immediately following
his suspension, and not Cruz-Sánchez's. Rivera-Merced -- who also
claims ignorance of Pagán's disciplinary history -- as Commander of
the Humacao area had the authority to assign Pagán to any position
within the Humacao area. There is no evidence, however, that
Rivera-Merced actually ordered that Pagán be accepted back on the
TOD. More importantly, that Rivera-Merced was higher up the
hierarchical ladder did not relieve Cruz-Sánchez of his own duty,
as Director of the TOD, of screening recruits and forming his own
assessment of their suitability for service in the TOD.
-40-
may have come in the Summer of 2007 when Cruz-Sánchez designed the
plan for the IU, a specialized squad within the TOD, and Colón-Báez
chose its members, and Pagán was allowed to join. But again, no
effort was made to investigate Pagán's disciplinary history.
It is up to the jury to consider Pagán's return to the
TOD and shortly thereafter his promotion to the IU, closely
following a suspension, all at the behest of Cruz-Sánchez, who
oversaw these decisions and afforded Pagán glowing reviews,
without even glancing at his disciplinary record, much less
investigating the reasons for his suspension. Sub par, pro forma
evaluations in particular concerned us in Gutierrez-Rodríguez v.
Cartagena, 882 F.2d 553 (1st Cir. 1989), when the supervisory
defendant in that case gave favorable reviews to an officer that
had ten complaints against him, including some episodes of
violence.
Id. at 563, 582.
Colón-Báez presents a more egregious case than Cruz
Sánchez. Colón-Báez personally selected Pagán for the IU, knowing
full well of Pagán's violent past; he personally served Pagán with
his suspension papers and admitted knowing that the sanction was
the result of domestic violence. Notwithstanding this fact, Colón-
Báez chose not to investigate Pagán's disciplinary history, which
would have uncovered several episodes of misconduct, including a
few particularly violent ones, and selected Pagán for the IU on a
whim.
-41-
The majority contends that there is no evidence of Colón-
Báez's knowledge of Pagán's violent past. Though the extent of
Colón-Báez's knowledge is arguably disputed, there is no question
that he was aware that Pagán served a considerable suspension for
an episode of domestic violence. Furthermore, had he probed the
matter, as he was required to do, he would have discovered that
Pagán had battered his ex-girlfriend and threatened her with death
while brandishing his firearm.
As to Colón-Báez, a rational jury could conclude that he
relied on no criteria for selecting prospective members of the IU,
and in Pagán's case in particular, declined to review his personnel
file or assess his disciplinary background. I stress that Colón-
Báez's inaction is particularly objectionable given that it is
undisputed that he was aware that Pagán faced disciplinary action
due to violent conduct. A rational jury could easily conclude that
awareness of Pagán's suspension should have, at the very least, put
him on notice of Pagán's violent character.
The majority also takes the position that review of
Pagán's disciplinary file would not have uncovered much of his
violent past. This is so, they contend, because at some point
during his tenure as Superintendent, Toledo-Dávila limited the
information contained in disciplinary orders by removing the
factual details underlying complaints, and listing only the
sanction. This, however, does not provide shelter to Cruz-Sánchez
-42-
or Colón-Báez. A change in the format of disciplinary orders did
not relieve either supervisor of his duty to ascertain whether or
not officers under their supervision presented a danger to the
civil rights of citizens. Both G.O. 87-14 and the testimony of
Toledo-Dávila regarding the duty of supervisors to assess their
subordinates' character bolster this proposition. Furthermore, as
Cruz-Sánchez himself admitted, both he and Colón-Báez could have
easily accessed whatever information was pertinent to Pagán's
suspension, which they were both aware of, merely by requesting it.
I am concerned by the majority's view that Pagán's
disciplinary history was not enough to put the supervisory
officials on notice that he presented a substantial risk of
shooting an arrestee or civilian. Underlying this finding is the
notion that, in order for liability to attach on a deliberate
indifference theory, our case law requires that supervisory
officials be on notice, not merely of the potential for violence on
the part of the subordinate, but of the potential of a specific act
of violence, in this case, shooting a civilian.
To be sure, the Supreme Court has provided guidance to
the effect that there must be warning of a specific kind of injury.
See Bd. of Cnty. Comm'rs of Bryan Cnty., Okla. v. Brown, 520 U.S.
397, 412 (1997)("[A] finding of culpability simply cannot depend on
the mere probability that any officer inadequately screened will
inflict any constitutional injury. Rather it must depend on a
-43-
finding that this officer was highly likely to inflict the
particular injury suffered by the plaintiff.") (emphasis omitted).
However, if a subordinate's threats of death by gunfire against
another person are not enough to put a supervisor on notice that
the subordinate is a prime prospect for engaging in such conduct in
the future, is it required that his supervisors wait until the
subordinate actually commits such a crime before corrective or
preventive measures are taken? Such a strenuous standard cannot
possibly be the law. In the case of Pagán, after one episode of
executing a civilian, it seems obvious now that he is an ideal
candidate for supervisory action based on his proven record. For
Cáceres, it was one shot too many.
Accordingly, out of an abundance of caution, I reject any
reading of the case law that approaches affording defendants one
free bite at the apple. Though in an Eight Amendment context, our
case law has actually disavowed the idea -- which would essentially
amount to requiring clairvoyance -- that too much specifics are
required. See Ruiz-Rosa v. Rullan, 485 F.3d 150, 157 (1st Cir.
2007) ("[P]roof of deliberate indifference by prison officials does
not require evidence that the officials were aware of the risk of
a specific harm."). I think we've avoided such a rule for good
reason.
I concede that whether the causal connection here is
sufficient, is a close question, particularly as to Cruz-Sánchez.
-44-
I understand it may seem a stretch to some, at first glance, that
a few violent episodes in 1998 would somehow be linked to another
violent episode in 2007. However, it is in part because this is
a difficult question that I believe the majority errs in not
allowing the jury to fulfill its traditional function. Young v.
City of Providence, 404 F.3d 4, 23 (1st Cir. 2005) ("[Q]uestions of
proximate cause are generally best left to the jury."). Though
Pagán's most egregious acts of violence happened years before the
murder of Cáceres, the disciplinary proceedings related to those
acts did not conclude until eight years later, in October 2006,
when Pagán served his suspension only months before the execution.15
A reasonable jury could conclude that Cruz-Sánchez and
Colón-Báez had several opportunities throughout these years to take
action to prevent harm to civilians on behalf of Pagán, and failed
to act up until 2007. Not an unlikely possibility, given that,
only months later, he would carry out the murder he had threatened
against at least two other people in the past, and took Pagán's
life.16
15
Respectfully, I find improbable the majority's belief that
the PRPD handled the complaints against Pagán in a serious manner.
The mere fact that eight years elapsed before Pagán received a
final sanction makes that procedure seem, frankly, laughable.
Moreover, in most jurisdictions I am aware of, assault and battery
with a deadly weapon carries a sentence of incarceration. Thus, a
sixty day suspension seems quite insubstantial as an administrative
sanction for essentially the same conduct.
16
The majority cites to Barreto-Rivera v. Medina-Vargas, 168
F.3d 42 (1st Cir. 1999), in support of its finding that Pagán's
-45-
III. Conclusion
A jury should have the opportunity to determine whether
Cruz-Sánchez and Colón-Báez were on notice of the risk of harm
Pagán posed to civilians. It should also have the occasion to
determine whether either defendant should have seized any of the
opportunities they had to keep Pagán from acting out and repeating
his violent tendencies. I believe a reasonable jury could answer
both inquiries in the affirmative. A claim of ignorance cannot
shield them from liability. In fact, such a claim might be
probative of deliberate indifference. Accordingly, for these
reasons, I dissent.
disciplinary file was not substantial enough to alarm his
supervisors that he posed a grave risk of harm. In Barreto-Rivera
we found sufficient evidence to conclude that a supervisory
official was deliberately indifferent to, among other things, a
disciplinary history more extensive than Pagán's. Id. at 49. The
principal defendant in Barreto-Rivera had also shot and killed a
civilian after a personal altercation. The brunt of our analysis
in Barreto-Rivera turned on the question of whether the principal
defendant was acting under color of state law.
Id. at 46-48. We
also found a causal nexus to the supervisory official's omissions
because there was a "known history of widespread abuse" as evinced
by the principal defendant's extensive disciplinary record.
Id. at
48-49. I note however, that Barreto-Rivera did not set a floor or
a ceiling for disciplinary records on the question of what amounts
to notice of a risk of harm.
-46-
