*Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 03-2123

REYNALDO RODRÍGUEZ-RODRÍGUEZ, ZENAIDA VEGA-SANTIAGO

and their conjugal partnership; RADAMÉS SANTIAGO-LÓPEZ

and ANGEL O. VÉLEZ-PACHECO,

Plaintiffs, Appellees,

v.

MIGUEL G. ORTIZ-VÉLEZ and KATIA MEDINA-PEDRAZA,

in their personal capacities,

Defendants, Appellants.

__________

SABANA GRANDE MUNICIPALITY; LUIS A. BÁEZ,

Sabana Grande Commissioner; OSVALDO OCASIO-RODRÍGUEZ;

PERSONS X, Y, Z; JANET LNU,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lynch, Circuit Judge,

and Schwarzer,* Senior District Judge.
Johanna M. Emmanuelli-Huertas with whom Law Offices of

Pedro E. Ortiz-Álvarez, PSC was on brief for appellants.

Francisco R. González with whom F.R. González Law Office was

on brief for appellees. 

December 8, 2004
1These sworn statements, as well as those of other individuals

involved, were attached as exhibits to the parties' summary

judgment filings. Most are sworn witness statements in the related

criminal proceedings against Rodríguez; one consists of criminal

trial testimony.

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BOUDIN, Chief Judge. This appeal involves a federal

civil rights suit brought by Reynaldo Rodríguez-Rodríguez

("Rodríguez") arising out of an election-week fracas that occurred

on November 2, 2000, in the municipality of Sabana Grande, Puerto

Rico. The defendants included Miguel Ortiz-Vélez ("Ortiz"), the

mayor of Sabana Grande, and municipal police officer Katia MedinaPedraza ("Medina"). These two defendants now appeal from the

district court's denial of their motion for summary judgment which

rested in part on their qualified immunity defense.

The underlying facts are far from clear. About all that

the two sides agree upon is that on November 2, 2000, Rodríguez was

driving a sound truck for the NPP (one of Puerto Rico's two main

political parties) near a local headquarters of the PDP (the other

main party); that PDP Mayor Ortiz and multiple persons on the

street engaged in a physical confrontation with Rodríguez during

which Rodríguez hit Ortiz; and that Officer Medina sought to

intervene.

Rodríguez' version of events, drawn from his complaint

and two nearly identical sworn statements made by him,1 are that

rocks were thrown at his vehicle; that when he stopped to inspect

the damage, Medina arrived in her police car and asked why he had
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stopped; that while he was answering, Ortiz appeared with a mob of

supporters, told Medina that he (Ortiz) would handle the matter,

and then struck Rodríguez in the face with a blackjack; that

Rodríguez managed to hit back at Ortiz, after which Medina struck

Rodríguez with her baton; and that Rodríguez was then attacked by

the crowd on the street.

The aftermath included criminal proceedings against

Rodríguez in state court and fruitless efforts by Rodríguez to have

the mayor criminally charged. In the present lawsuit (but not in

the complaint), Rodríguez asserted that the mayor, while at one of

Rodríguez' criminal trials, was greeted by another official of

Ortiz' PDP party who went to the judge's chambers and who then

left, signaling to the mayor that he (the other official) had "made

the necessary arrangements."

Based on these alleged events, Rodríguez brought the

present action under 42 U.S.C. § 1983 (2000) against Ortiz, Medina,

the municipality of Sabana Grande, the police commissioner and

others. The legal claims asserted in the complaint were various

and not well defined. In essence, Rodríguez claimed that Ortiz and

Medina had each wrongfully struck him, that Ortiz and Medina had

together "initiated, instigated, planned, participated and

directed" the "multitudinous assault and battery" and that they had

both failed to protect Rodríguez when he was being beaten.
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The claim against Medina was framed as one of excessive

force by a police officer. Ortiz, according to Rodríguez, was

acting under color of state law when he allegedly told Medina to

step aside and then struck Rodríguez. Rodríguez also claimed that

the defendants wrongfully failed to protect him from the crowd's

attacks. He further alleged that they violated his substantive due

process rights and his First Amendment rights; the latter claim is

premised on Rodríguez' view that "[t]he reason for the assault and

mob beating was that [Rodríguez] was . . . exercising his First

Amendment [rights] of Political Speech and association."

Rodríguez also alleged that the mayor and the municipal

government failed to properly train and supervise the police and

others and failed to enforce regulations, thereby endangering

individuals' constitutional rights. Finally, Rodríguez has

asserted that Medina and Ortiz obstructed justice by not arresting

Ortiz or prosecuting others who were involved in the incident.

After discovery, the defendants moved for summary

judgment. Their version of what happened, backed by their own

affidavits and affidavits from others, was quite different in

crucial respects. They claimed that Rodríguez had driven with his

sound truck blaring past the PDP party headquarters and that he had

stopped there, dismounted, and got in an altercation with a 15-
2The evidence about this fight is rather thin; the boy was the

only witness whose sworn statement described the incident. Ortiz

only said that he heard others complaining that Rodríguez had

assaulted a minor. Medina arrived at the scene after a fight she

did not see, but apparently was told it was between one Julio Ortiz

and someone else.

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year-old boy that ended with Rodríguez striking the boy and

breaking his glasses.2

Medina's sworn statement said that she had arrived at the

scene after a fight had broken up and that Ortiz approached her and

asked her to file a complaint against Rodríguez for assaulting the

boy. According to Medina, Rodríguez responded by striking the

mayor. She says she tried to arrest Rodríguez, but was unable to

do so because of the large crowd that then attacked him. Unable to

break up the crowd, Medina said that she radioed for assistance and

returned to try to protect Rodríguez from the crowd, which finally

dispersed as paramedics arrived.

In his own sworn statement, the mayor supported Medina's

story (although he didn't observe what she did after he was hit by

Rodríguez). Another witness's story roughly corroborated Medina's-

-although he testified that the first punch was thrown by someone

other than the mayor or Rodríguez and that during the fracas Medina

"tried in, with her baton, taking . . . the ones who [were]

fighting."

In moving for summary judgment on the merits, Ortiz and

Medina argued that Medina had been acting reasonably, that Ortiz
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had not in any event been a state actor in the encounter, that

neither had been acting in concert with the other, and that the

criminal charges brought thereafter against Rodríguez were filed by

the Puerto Rico Department of Justice and not any of the

defendants. Medina and the mayor quite briefly invoked qualified

immunity, saying that neither had foreseen how events would

develop.

The district judge denied the motions for summary

judgment without explanation and this appeal by Ortiz and Medina

followed. Normally the denial of a motion for summary judgment is

not immediately appealable, but a denial of qualified immunity may

be appealed to the extent the decision is a "purely legal" one,

Dwan v. City of Boston, 329 F.3d 275, 278 (1st Cir. 2003); what

cannot be appealed is a district court's denial of qualified

immunity based on the court's determination that "the pretrial

record sets forth a 'genuine' issue of fact." Johnson v. Jones,

515 U.S. 304, 320 (1995).

A denial of summary judgment because of a genuine issue

of material fact is itself a ruling of law and not a finding of

fact; but Johnson makes clear that this class of legal rulings is

not immediately appealable even if the district court is mistaken

in thinking that there was a genuine issue. Still, a denial of

qualified immunity on such a ground can be appealed immediately on

the issue whether the plaintiffs' own version of events together
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with uncontested facts entitles the defendant to immunity. See

Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Camilo-Robles v.

Hoyos, 151 F.3d 1, 8 (1st Cir. 1998), cert. denied, 525 U.S. 1105

(1999).

Although we could remand for clarification of the

district court's reasoning if we thought it necessary, CamiloRobles, 151 F.3d at 8 n.5, the district court almost surely thought

(1) that the two sides' stories were in direct conflict on crucial

points--which they self-evidently are--and (2) that on Rodríguez'

version qualified immunity would not be available. The latter

ruling is reviewable now under Johnson. We are constrained to

agree with the district court that Rodríguez' allegations preclude

qualified immunity at the present time, although only barely so as

to Medina.

Starting with Medina, in principle a constitutional claim

can be made under the Fourth Amendment against a police officer who

uses excessive force during a "seizure." Graham v. Connor, 490

U.S. 386, 395-96 (1989). Even if there is no "seizure" for Fourth

Amendment purposes, a constitutional claim of conscience-shocking

force can be made out against an officer under substantive due

process principles. County of Sacramento v. Lewis, 523 U.S. 833,

843, 846-47 (1998). Assuming that Rodríguez could prove at trial

his own sworn version of events, it is barely possible--even though
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extremely unlikely--that he could establish a claim against Medina

for which qualified immunity would not be available.

The gist of Rodríguez' sworn statement is this: "After

[Ortiz] attacked me I . . . threw a punch to defend myself, hitting

him on his face; then the police woman attacked me with the baton

stabbing at my ribs with the tip . . . ." Rodríguez also describes

falling to the ground and the extensive injuries he sustained in

the melee that followed. It is this sequence of events that

Rodríguez says amounts to deliberate and unjustified use of force

by a police officer.

This is a very dubious claim of excessive force;

Rodríguez has admitted striking the mayor and, whether or not the

mayor struck first, Medina probably would have been acting

reasonably (and thus lawfully) if she used her baton to prevent a

second blow by Rodríguez or hit him by accident in trying to break

up the crowd gathering around him or for any of several other

defensible reasons. See Saucier v. Katz, 533 U.S. 194, 204-05

(2001) (force incident to arrest); see also Cummings v. McIntire,

271 F.3d 341, 345 (1st Cir. 2001) (force not incident to arrest).

Furthermore, for qualified immunity she would not even need to show

that her judgment was correct but only that a reasonable police

officer could in the circumstances have reasonably believed that

this step was not legally excessive. See Saucier, 533 U.S. at 205.
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The difficulty is that Medina has never invoked any set

of circumstances to explain why she, or a reasonable officer in her

place, would have struck Rodríguez. Without mentioning the alleged

baton strike, Medina stated in effect that Rodríguez struck the

mayor and "I proceeded to intervene with the man [Rodríguez] to try

to put him under arrest . . . ." Nothing is said, for example,

about whether she struck him and, if so, why she needed to strike

him incident to an arrest or otherwise. There is no indication

that Rodríguez was poised to strike another blow or to flee or that

the blow was light and accidental. In sum, the materials for a

likely qualified immunity defense may be lying at hand,

see Saucier, 533 U.S. at 204-05, but the construction work has not

been done.

In reaching our conclusions as to Medina, we give no

weight at all to Rodríguez' charges that Medina conspired with

Ortiz, that Medina directed the mob beating Rodríguez or that

Medina wrongfully failed to protect Rodríguez. These conclusory

charges in the complaint have been effectively denied by Medina who

has furnished a sworn plausible, non-conspiratorial and nonculpable version of her interactions--apart from the alleged baton

strike. By contrast, Rodríguez has not offered any supporting

evidence or detail to buttress most of his claims. This is not a

matter of two conflicting factual claims but of conclusory rhetoric

as against sworn, specific statements.
3Rodríguez also says that the mayor told Medina to strike

Rodríguez; but this charge is not repeated in any sworn statement

by Rodríguez nor supported in any record evidence submitted by

Rodríguez.

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This brings us to Ortiz. To establish a free-speech

violation, Rodríguez would have to show both that the mayor struck

Rodríguez in retaliation for the latter's broadcast of political

propaganda or for some other reason connected to Rodríguez'

political affiliation, see El Dia, Inc. v. Rossello, 165 F.3d 106,

109 (1st Cir. 1999), and also that he did so in his role as mayor

rather than in his private capacity, see Yeo v. Town of Lexington,

131 F.3d 241, 248-49, 255 (1st Cir. 1997) (en banc), cert. denied

524 U.S. 904 (1998).3 It may be surprising that such a claim

survived summary judgment, but it is also hard to see what

qualified immunity has to do with the matter.

Qualified immunity applies when an official takes an

action that a reasonable official could believe to be lawful--even

though it turns out not to be, see Dwan v. City of Boston, 329 F.3d

275, 278 (1st Cir. 2003); the easy example is a close-call case of

probable cause to arrest, see, e.g., Abreu-Guzman v. Ford, 241 F.3d

69, 73 (1st Cir. 2001). This qualified immunity protection is

available in First Amendment cases as well, although less easily

invoked. See, e.g., Dirrane v. Brookline Police Dep't, 315 F.3d

65, 70-71 (1st Cir. 2002).
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Here, if the mayor did without justification strike

Rodríguez with a blackjack, as Rodríguez has claimed, no reasonable

mayor could believe that this was lawful or entitled him to

qualified immunity. Of course, the mayor may not have struck

Rodríguez at all; but this is a raw factual dispute. The district

court's failure to resolve it in the mayor's favor on summary

judgment is unreviewable short of a final judgment, whether it is

treated as a merits question or dubitante as pertaining to

qualified immunity.

One may well doubt whether, if the mayor did strike

Rodríguez, he did so as a state actor. But if he were a state

actor, he would not enjoy immunity because, as just indicated, the

action would not be even arguably lawful; and if he were not a

state actor, immunity would again not be available because the

purpose of immunity is to protect persons acting in an official

capacity. While the latter conclusion would defeat the federal

civil rights claim, the issue is not properly before us.

What Ortiz and Medina have done on this appeal is to

raise very serious questions whether the excessive force and

mayoral assault claims have any likelihood of success as federal

civil rights claims. We trust that the district judge will not let

the case linger or ignore any further well-founded effort to sort

out this kitchen-sink complaint short of trial. If Rodríguez loses

his case, the defendants are free to apply for attorneys' fees.
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See Fid. Guarantee Mortgage Corp. v. Reben, 809 F.2d 931, 935-36

(1st Cir. 1987).

We have addressed in this decision only the two most

concrete claims made by Rodríguez: the charge of excessive force

against Medina and the free-speech assault claim against Ortiz.

Rodríguez has, as already noted, made other numerous but shadowy

charges, primarily against Ortiz. Neither the charges themselves,

nor any possible defense based on qualified immunity, are

sufficiently distilled by the parties on appeal to warrant any

further comment about them.

The judgment on appeal is affirmed as to the claim by

appellants that the district court erred on an issue of law

concerning qualified immunity. As to whether the district court

made a mistake in believing that factual disputes barred qualified

immunity or in denying summary judgment on the merits, we have no

authority to entertain an interlocutory appeal on either score.

Each side shall bear its own costs on this appeal.

It is so ordered.