Ramirez-Lluveras v. Rivera-Merced

2014 | Cited 0 times | First Circuit | July 14, 2014

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

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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

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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.

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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)

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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.

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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.

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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.

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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

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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

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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

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"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

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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

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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."

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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

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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

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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.

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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

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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

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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."

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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)).

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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.").

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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

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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.

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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

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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

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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.

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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]")).

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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.

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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.

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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

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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.

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