* Of the Northern District of California, sit ting by

designation. 

# United Stat es Court of Appeals

For the First C ircuit

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 who m L aw 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, 20041 These 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 consist s of criminal trial testimony. -3-

BOUDIN, Chief Judge . This appeal in volv es 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 Orti z-Vélez ("Ortiz"), the mayor of Sabana Grande, and municipal police officer Katia MedinaPedraza ("Medina "). T hese 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 st reet engaged in a physical confrontation with Rodríguez during whic h R odríguez hit Ortiz; and that Officer Medina sought to intervene. Rodríguez' version of events, drawn from his complaint andtwo nearly identical s worn 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-4-

stopped; that while he was answering, Ortiz appeared with a mob of supporters, told Medin a that he (Ortiz) would handle the matter, andthen 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' cri minal trials, was greeted by another official of Ortiz' PDP party who went to the judge 's c hambers and who then left, signaling to the mayor that he (the other official) had "made the necessary arrangements."

Basedon the se al leged events, Rodríguez brought the present action under 42 U.S.C. § 1983 (2000) against Ortiz, Medina, the municipality of Sabana Grande, the police commissi oner and others. The legal claims asserted in the complaint were various andnot 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.-5- 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 alle gedly told Medina to step aside and then struck Rodríguez. Rodríguez also claimed that the defendants wrongfull y fail ed 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 premisedon 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 po lice and other s and failed to enforce regulations, thereby endangering individuals' constitutional rights. Finally, Rodríguez has assertedthat 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 soundtruck blaring past the PDP party headquarters and that he had stoppedthere, dismounted, and got in an altercation with a 15-2 The evidence about this fight is rather thin; the boy was the

only witness whose sworn statement described the incident. Ortiz only s aid th at he heard others complaining that Rodríguez had assaulted a minor. Medina arrived at the scene after a fight she didnot see, but apparently was told it was between one Julio Ortiz and someone else. -6- year-oldboy that ended with Rodríguez striking the boy and breaking his glasses. 2

Medina's sworn statement said that she had arrivedat the

scene after a fight had broken up and that Ortiz approached her and askedher 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 attackedhim. Unable to break up the crowd, Medina said that she radioed for assistance and returnedto 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 "triedin, 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 actin g reasonably, that Ortiz-7-

hadnot in any event been a state actor in the encounter, that neither had been acting in concert with the o ther, 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 moti ons 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 l egal" one, Dwan v. City of Boston , 329 F.3d 275, 278 (1st Cir. 2003); what cannot be appealed is a district court's d eni al of qualified imm unitybased on the court's determination that "the pretri a l recordset s for th 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 rul ing 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 qualifiedimmunity on such a ground can be appealed immediately on t he issue whether the plaintiffs' own version of events to gethe r-8-

with uncontested fac ts 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 cla rification of the district court's reasoning if we thought it necessary, C amil oRobles , 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 qualifiedimmunity 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-9-

extremely unlikely--that he could establish a claim against Medina for which qualified immunity would not be available.

The gist of Rodríguez' sworn state ment is this: "After [Ortiz] attackedme I . . . threw a punch to defendmyself, 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 fol low ed. It is this sequence of events that Rodríguez says amounts to deliberate and unjustified use of force by a police officer.

This is a ve ry d ubious claim of excessive force; Rodríguez has admitted striking the mayor and, whether or not the mayor struck first, Medi na probably would have been acting reasonably (and thus lawfully) if she used her baton to prevent a secondblow by Rodríguez or hit him by accident in trying to break up the crowd gathering around him or for any o f 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 t he circumstances have reasonably believed that this step was not legally excessive. See Saucier , 533 U.S. at 205.-10- The difficulty is that Medina has never invoked any set of circumstances to explain why she, or a reasonable officer in her place, wouldhave struck Rodríguez. Without mentioning the alleged baton strike, Medina stated in e ffe ct that Rodríguez struck the mayor and"I proceeded to intervene with the man [Rodríguez] to try to put him under ar rest . . . ." Nothing is said, for example, about whether she struck him and, if so, why she needed to strike himin cident 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 likelyqualified 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 b eating Rodríguez or that Medina wrongfully failed to prot ect Rodríguez. These conclusory charges in the complaint have been effectively denied by Medina who has furnished a sworn plausible, non-c onspiratorial 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.3 Ro drígue z 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. -11-

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 br oadc ast 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), andalso 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 survivedsummary judgment, but it is also hard to see what qualified immunity has to do with the matter.

Qualifiedimmunity applies when an official ta kes a n action that a reasonable official couldbelieve to be lawful--even though it turns out not to be, see Dwan v. Cityof 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 l ess ea sily invoked. See, e.g. , Dirrane v. Brookline Police Dep't , 315 F.3d 65, 70-71 (1st Cir. 2002).-12- Here, i f 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 qualifiedimmunity. 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 m erits question or dubitante as pertaining to qualified immunity.

One maywell doubt whether, if the mayor did strike Rodríguez, he did so as a state acto r. 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 con clu sion 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 exces sive force and mayoral assault claims have any likelihood of su ccess 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.-13-

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 nu merous 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 affirmedas to the claim by appellants that the district court erred on an issue of law concerni ng qua lified 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 .