United States Court of Appeals

For the First Circuit

No. 07-2196

ASOCIACIÓN DE PERIODISTAS DE PUERTO RICO, Puerto Rico

Journalists Association; OVERSEAS PRESS CLUB OF PUERTO RICO;

NORMANDO VALENTÍN, individual capacity and on behalf of his

respective Conjugal partnership; VÍCTOR SÁNCHEZ, individual

capacity and on behalf of his respective Conjugal Partnership;

JOEL LAGO-ROMÁN, individual capacity and on behalf of his

respective Conjugal Partnership; COSSETTE DONALDS-BROWN,

individual capacity and on behalf of her respective Conjugal

Partnership; VÍCTOR FERNÁNDEZ, individual capacity and on

behalf of his respective Conjugal Partnership; ANNETTE ÁLVAREZ,

individual capacity and on behalf of her respective

Conjugal Partnership,

Plaintiffs, Appellants,

v.

ROBERT MUELLER, in his official capacity as Director of the

Federal Bureau of Investigation; TEN UNKNOWN AGENTS OF THE

FEDERAL BUREAU OF INVESTIGATION, individually and in their

official capacity and on behalf of their Conjugal Partnership;

AGENT KEITH BYER, individually and in his official capacity and

on behalf of his Conjugal Partnership; AGENT LUIS S. FRATICELLI,

individually and in his official capacity and on behalf of his

Conjugal Partnership; AGENT JOSÉ FIGUEROA-SANCHA, individually

and in his official capacity and on behalf of his

Conjugal Partnership,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]
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Before

Lynch, Chief Judge,

Torruella, Circuit Judge,

and Selya, Senior Circuit Judge.

Catherine Crump, with whom Aden J. Fine, ACLU Foundation, Nora

Vargas-Acosta, Josué Gonzáles-Ortiz, William Ramírez, ACLU, Puerto

Rico National Chapter, was on brief for appellants.

Germán A. Rieckehoff, Assistant United States Attorney, with

whom Rosa E. Rodríguez-Vélez, United States Attorney, Nelson PérezSosa, Assistant United States Attorney, Chief Appellate Division,

and Isabel Muñoz-Acosta, Assistant United States Attorney, was on

brief for appellees.

Lucy A. Dalglish, Gregg P. Leslie, Corinna J. Zarek, and

Elizabeth J. Soja, on brief for amicus curiae The Reporters

Committee for Freedom of the Press.

June 18, 2008
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TORRUELLA, Circuit Judge. This appeal involves alleged

violations of the First and Fourth Amendments by the Federal Bureau

of Investigation ("FBI") against a group of journalists during the

execution of a search warrant. The district court granted summary

judgment for the defendants on all claims based on qualified

immunity. After carefully considering the evidence in the record,

we affirm summary judgment on all First Amendment claims, but hold

that summary judgment was not proper against the individual

plaintiffs on their excessive force claims.

I. Background

As this case comes to us on summary judgment, we recount

the facts in the light most favorable to the nonmoving parties; in

this case, those parties are the plaintiffs. See, e.g., Franceschi

v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 84 (1st Cir. 2008).

On February 10, 2006, FBI agents executed a search

warrant on Liliana Laboy-Rodríguez's residence in a condominium

complex in San Juan, Puerto Rico. Laboy-Rodríguez is a prominent

political activist associated with the Puerto Rico independence

movement. News of the search spread quickly; during the course of

the day, members of the media descended on the scene and set up to

cover the events as they unfolded. Among those journalists were

the individual plaintiffs: Normando Valentín, a television

reporter; Victor Sánchez, his cameraman; Cossette Donalds Brown, a

radio reporter; Víctor Fernández, a television cameraman; Annette
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Álvarez, a television reporter; and Joel Lago-Román, a radio

reporter.

Laboy-Rodríguez resides in an apartment within a multiunit condominium building surrounded by a metal fence and concrete

wall. There are two access points in the fence: a pedestrian gate

and a vehicular access gate. A private security guard controls the

flow of cars and people into the building and parking lot from a

booth located between the two gates. During the execution of the

search warrant, the FBI agents utilized the building's existing

fence and security structure to restrict the flow of people into

the area. Access was limited to residents, their guests, and

building employees. Members of the media and other curious

bystanders congregated outside the metal fence on the street and

sidewalk.

Around noon, a U.S. Department of Homeland Security

helicopter approached a nearby field. As an FBI agent on the

ground signaled to the helicopter, it landed and eight to ten

heavily armed agents disembarked. Some of the journalists

approached the field hoping to interview the agents as they made

their way to the condominium. The agents allegedly pushed away the

journalists' microphones, placed a hand in front of the lens of one

camera, and raised a rifle in their direction. Unsuccessful at

obtaining any statements from the agents, the journalists

eventually returned to the outside of the complex. By this point,
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the crowd of people outside of the fenced area -- members of the

media and the general public, including some local students -- had

grown and some were shouting foul language at the agents.

Two hours later, Laboy-Rodríguez's daughter (Natalia

Hernández-Laboy) and lawyers arrived and gained admittance to the

condominium building. Laboy-Rodríguez came downstairs to meet with

them, and she was interviewed by one reporter who had entered the

complex. During this time, FBI agents began exiting the building,

loading their cars with boxes of seized materials. Soon

thereafter, more reporters and other camerapersons entered the

gated area, allegedly in response to a "wave" from Natalia

Hernández-Laboy, and approached the agents with questions.

According to one plaintiff's account, some fifteen to twenty people

had entered the gated area.

The FBI agents ordered the group to return outside the

gated area. The plaintiffs maintain that they were peaceful at all

times and that when ordered to leave, they sought to exit through

the pedestrian gate, but were hindered by the agents' attempts to

push the crowd through the narrow opening. The plaintiffs assert

that without giving them an opportunity to exit, FBI agents

physically grabbed and assaulted the reporters and cameramen using

pepper spray and metal batons. Several of the plaintiffs aver that

they sought and received medical treatment for their injuries.
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On September 20, 2006, the plaintiffs –- several

individual journalists and the Asociación de Periodistas de Puerto

Rico and the Overseas Press Club of Puerto Rico, two organizations

comprised of journalists, photographers, and camerapersons -- filed

a complaint against the defendants, FBI Director Robert Mueller and

other known and unknown agents of the FBI, alleging violations of

their First and Fourth Amendment rights. The defendants moved for

summary judgment, claiming protection from the allegations on the

basis of qualified immunity. In support of their motion, the

defendants submitted an affidavit by FBI Special Agent Keith Byers

and a DVD with video footage of the day's events. The court

granted the defendants' motion for summary judgment, finding that

the plaintiffs' proffered facts had failed to establish a

constitutional violation. Plaintiffs appealed.

II. Discussion

A. Standard of Review

Summary judgment is proper when "there is no genuine

issue as to any material fact and . . . the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(c). Our review

of a court's grant of summary judgment is de novo. Whitman v.

Miles, 387 F.3d 68, 70 (1st Cir. 2004). Reversal is required if

"there existed any factual issues that needed to be resolved before

the legal issues could be decided." Sabree v. United Bhd. of

Carpenters & Joiners Local No. 33, 921 F.2d 396, 399 (1st Cir.
 We have declined to adopt a rigid rule requiring a motion to 1

strike in order to preserve an objection to the admissibility of

evidence in connection with a summary judgment motion. See

Pérez v. Volvo Car Corp., 247 F.3d 303, 314 (1st Cir. 2004). As

long as the objecting party makes the objection known to the court

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1990) (quoting Rossy v. Roche Prods., Inc., 880 F.2d 621, 624 (1st

Cir. 1989)); see also Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 (1986) (requiring reversal if "there are any genuine

factual issues that properly can be resolved only by a finder of

fact because they may reasonably be resolved in favor of either

party"). At summary judgment, the court's focus is not "to weigh

the evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial." Id. at 249.

B. Defendants' DVD

As an initial matter, there is some question surrounding

the admissibility of a Spanish-language DVD submitted by the

defendants without any accompanying affidavits. The DVD is a

segment of a local news program that played footage of the day's

events. In their motion for summary judgment, the defendants

relied heavily on the DVD. Citing to the Supreme Court's decision

in Scott v. Harris, 127 S. Ct. 1769 (2007), the defendants argued

that the video disproves the plaintiffs' factual allegations of

interference with news gathering and use of excessive force.

Although the plaintiffs did not file a motion to strike the DVD

evidence, they disputed the DVD's authenticity in their opposition

to summary judgment. Specifically, the plaintiffs asserted that 1
in a reasonable and timely manner and outlines the perceived

shortcomings, we care not "[w]hether the dissatisfied party

fulfills these requirements by means of a motion to strike or in

some substantially equivalent way." Id. As made evident by the

court's reference to the plaintiffs' objections, the plaintiffs met

this requirement despite having failed to file a formal motion to

strike.

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the DVD appeared to be heavily edited, and the lack of any

affidavits attesting to the DVD's authenticity required a finding

that the evidence was not proper for consideration at summary

judgment.

In its order, the district court noted the plaintiffs'

objections to the DVD and stated: "We, therefore, base our

discussion on Plaintiffs' version of the facts." Asociación de

Periodistas de Puerto Rico v. Mueller, No. 06-1931, slip op. at 12

(D.P.R. June 12, 2007). Although the court did not formally

strike the DVD from the record, we think it reasonable to conclude

that the district court excluded it in its consideration of the

summary judgment motion. Accordingly, we likewise decline to

consider the DVD in our review. Cf. Livick v. Gillette Co., 524

F.3d 24, 28 (1st Cir. 2008) ("[W]e will not disturb the district

court's [decision to exclude evidence] unless the record

demonstrates an error of law or a serious lapse of judgment on the

part of the court."). We make no ruling on the admissibility of a

properly authenticated DVD on remand.
 We have, on occasion, considered these inquiries within a two- 2

step analysis. See, e.g., Santana v. Calderón, 342 F.3d 18, 23

(1st Cir. 2003).

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C. Qualified Immunity

In their motion for summary judgment, the defendants seek

to avoid liability by invoking the protection of qualified

immunity. In this circuit, we generally apply a three-prong test

in determining whether that defense is applicable: first, whether

there was a violation of a constitutional right; second, whether

that constitutional right was clearly established at the time; and

third, "whether a 'reasonable officer, similarly situated, would

understand that the challenged conduct violated' the clearly

established right at issue." Riverdale Mills Corp. v. Pimpare, 392

F.3d 55, 59-61 (1st Cir. 2004) (quoting Suboh v. Dist. Attorney's

Office, 298 F.3d 81, 90 (1st Cir. 2002)). In accordance with the 2

preferred approach in qualified immunity cases, which is to address

the considerations sequentially, we begin by discussing the alleged

constitutional violations. See Scott, 127 S. Ct. at 1774 ("If, and

only if, the court finds a violation of a constitutional right,

'the next, sequential step is to ask whether the right was clearly

established.'" (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001))). Here, the plaintiffs assert that the defendants violated

their First and Fourth Amendment rights.
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1. First Amendment Claims

The plaintiffs allege that the defendants, through the

use of force and intimidation, violated the First Amendment

because they interfered with the journalists' ability to gather and

report on the news while within the gated condominium complex and

at the nearby helicopter landing field. We need not address either

the existence or the scope of such a right to gather and report on

the news, because in this case the plaintiffs have not demonstrated

that they were authorized to enter those properties. The First

Amendment does not grant the press a special right of access to

property beyond the public domain. See, e.g., Richmond Newspapers

v. Virginia, 448 U.S. 555, 577-78 (1980) (recognizing a right to

report on public trials and describing the First Amendment right as

extending to "streets, sidewalks, and parks[, which] are places

traditionally open"); see also Wilson v. Layne, 526 U.S. 603, 612-

13 (1999).

The plaintiffs admit that the area within the condominium

complex was private property to which access was limited. Although

some of the plaintiffs contend that they entered the gate in

response to a "wave" from Natalia Hernández-Laboy, there is no

evidence to show that she was a resident of the complex or that she

had the authority to invite them into the complex. Similarly, with

respect to the incidents occurring in the nearby field, there is

nothing in the record to establish that the plaintiffs had the
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authority to enter the field. It is the plaintiffs' burden to show

that they had the right to access both the field and the

condominium complex. See Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71,

81 (1st Cir. 2005). Absent evidence establishing the plaintiffs'

right to enter the properties, the incidents complained of do not

amount to a violation of the First Amendment. See Branzburg v.

Hayes, 408 U.S. 665, 684 (1972) ("It has generally been held that

the First Amendment does not guarantee the press a constitutional

right of special access to information not available to the public

generally."); cf. Cape Cod Nursing Home Council v. Rambling Rose

Rest Home, 667 F.2d 238, 243 (1st Cir. 1981) ("Since the

plaintiff[] had no right to be on the property, the police action

in removing [him] could not in itself create such a right where

none existed before.").

Because the plaintiffs fail to make out a violation of

their First Amendment rights, the district court properly granted

summary judgment to the defendants based on the first prong of the

qualified immunity test. See Saucier, 533 U.S. at 201 ("If no

constitutional right would have been violated were the allegations

established, there is no necessity for further inquiries concerning

qualified immunity."). Given the proper dismissal of the First

Amendment claims (leaving only the Fourth Amendment claim), the

organizational plaintiffs -- the Asociación de Periodistas de

Puerto Rico and the Overseas Press Club of Puerto Rico -- were
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properly dismissed from the case. See United States v. Torres, 162

F.3d 6, 10 (1st Cir. 1998) (noting that the rights secured by the

Fourth Amendment are personal and cannot be vicariously asserted by

others). All of the individual plaintiffs' First Amendment claims

are also dismissed.

2. Fourth Amendment Claims

The individual plaintiffs also allege violations of their

Fourth Amendment right to be free from the use of excessive force.

Again, in the context of the defendants' assertion of qualified

immunity, we address the first prong of the test: whether the

proffered facts, taken in the light most favorable to the

plaintiffs, demonstrate a constitutional violation. As this comes

to us on summary judgment, we view the entire record and inquire as

to whether a violation "could be made out on a favorable view of

the parties' submissions." Saucier, 533 U.S. at 201.

The six individual plaintiffs allege that upon entering

the gated area they were, without provocation, pushed, punched, hit

by metal batons, and pepper sprayed in the face by federal agents
 It is unclear whether plaintiffs attempt to allege a Fourth 3

Amendment violation as to conduct that occurred when agents arrived

on the helicopter at the nearby field. The most serious of the

allegations is that one of the agents "kept pointing his rifle

toward [an individual plaintiff]." The facts attested to by the

plaintiffs describe a tense situation in which a government

helicopter landed and deployed several heavily armed federal agents

who then made their way to the condominium complex. This does not

make out an excessive force claim.

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and, consequently, suffered injuries. The affidavits submitted by 3

the plaintiffs confirm these allegations.

Although the use of force in excess of an objective

standard of reasonableness is contrary to the Fourth Amendment, see

Graham v. Connor, 490 U.S. 386 (1989), the district court concluded

that the plaintiffs had failed to establish a constitutional

violation. The district court observed that:

[F]aced with an angry mob that shouted insults

at agents and carried rocks that they later

hurled at departing FBI vehicles, Defendants

reasonably could have believed that it was

necessary to use physical force against

members of the crowd that included kicking,

punching, and hitting Plaintiffs with batons

in order to prevent the situation from

escalating into one that would threaten the

safety of the agents, the crowd, and innocent

bystanders.

Periodistas, No. 06-1931, slip op. at 13. In so finding, the court

erroneously adopted the defendants' characterization of the day's

events and failed to assess the facts under the appropriate

standard: "whether plaintiff's [Fourth Amendment] claim survives in

light of all the uncontested facts and any contested facts looked
 Although the defendants argue that their response was 4

necessitated by the escalating threat of a crowd that was

increasingly angry and armed (with stones), the defendants did not

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at in the plaintiff's favor." Riverdale, 392 F.3d at 62 (emphasis

added).

To establish a Fourth Amendment excessive force

violation, the plaintiffs must show that the defendants employed

force that was unreasonable under the circumstances. See Graham,

490 U.S. at 397. Here, the plaintiffs' submissions reveal that

without any provocation or need for force, the defendants assailed

them. The plaintiffs contend that they were attempting to exit the

gated area, but were impeded by the narrow pedestrian access gate.

While bottlenecked in the space between the agents and the gate,

the defendants hit some of the plaintiffs and, without warning,

applied pepper spray directly into their faces. One plaintiff

attests in his affidavit that he fell to the ground during the

course of events and an agent intentionally sprayed him in the area

around his eyes and caused intense burning and temporary blindness.

While still blinded and prone on the ground, an agent grabbed and

kicked him, causing additional injuries. According to the

plaintiffs' submissions, all of this occurred without any

provocation.

As the record presently exists, the defendants have not

offered any evidence that contradicts the plaintiff's version of

the facts. Rather, the affidavit of Special Agent Byers makes 4
submit any evidence into the record to support these assertions.

Nothing in the record establishes that the crowd was unruly or that

the journalists within the gated area created a situation that gave

rise to such safety concerns.

 Of course, on remand the parties will have the opportunity to 5

supplement the record, which may change our assessment. Our

holding is based on the record as it now exists.

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only conclusory statements regarding the need for crowd control

because the "reporters and crowd members refused to return outside

the perimeter despite our repeated instructions that they do so."

However, mere obstinance by a crowd, without any evidence of a

potential public safety threat or other law enforcement

consideration, is insufficient to warrant the show of force that,

according to the facts viewed in the light most flattering to the

plaintiffs, was exhibited by the law enforcement officers here.

See Headwaters Forest Def. v. County of Humboldt, 276 F.3d 1125,

1130 (9th Cir. 2002) (finding unreasonable the use of pepper spray

against nonviolent protestors who were "sitting peacefully, were

easily moved by the police, and did not threaten or harm the

officers"). Furthermore, Byers's affidavit does not even purport

to address the individual plaintiffs' specific claims of excessive

force and injury. Therefore, on this present record, the

plaintiffs have made out a prima facie case that the defendants'

conduct violated a constitutional prohibition against excessive

force.5
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Turning to the second prong of the test, we ask whether

this constitutional right was "clearly established" at the time

such that it would be "clear to a reasonable officer that his

conduct was unlawful in the situation he confronted." Saucier, 533

U.S. at 202. In essence, this prong asks "whether existing case

law gave the defendants 'fair warning that their conduct violated

the plaintiff[s'] constitutional rights.'" Jennings v. Jones, 499

F.3d 2, 16 (1st Cir. 2007) (quoting Suboh, 298 F.3d at 93). The

degree of factual particularity required to provide fair warning

varies on the circumstances of the case. See United States v.

Lanier, 520 U.S. 259, 271 (1997) (contrasting cases in which a

"very high degree of factual particularity may be necessary" with

cases in which "a general constitutional rule already identified in

the decisional law may apply with obvious clarity to the specific

conduct in question"). The facts on the record, taken most

favorably to the plaintiffs, reveal that without provocation, the

defendants beat and applied pepper spray into the faces of the nonthreatening plaintiffs to force them to exit the gated area. Thus,

our proper inquiry is whether prior law makes clear that the use of

such force against a group of non-threatening individuals was

excessive.

The Supreme Court's case law clearly establishes beyond

any doubt that the "use of force is contrary to the Fourth

Amendment if it is excessive under objective standards of
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reasonableness." Saucier, 533 U.S. at 202 (citing Graham, 490 U.S.

at 386). While the generalized holding in Graham will not

necessarily provide sufficient notice to officers, "in the obvious

case, the standards announced in th[at] decision[] . . . [are]

sufficient to 'clearly establish' the answer." Whitfield v.

Meléndez-Rivera, 431 F.3d 1, 8 (1st Cir. 2005) (citing Brosseau v.

Haughen, 543 U.S. 194 (2004)). Indeed, we have held that where an

officer's conduct is "such an obvious violation of the Fourth

Amendment's general prohibition on unreasonable force . . . a

reasonable officer would not have required prior case law on point

to be on notice that his conduct was unlawful." Jennings, 499 F.3d

at 17; see also DeMayo v. Nugent, 517 F.3d 11, 18 (1st Cir. 2008)

(noting that a general constitutional rule may apply to specific

conduct "even though 'the very action in question has [not]

previously been held unlawful" (quoting Lanier, 520 U.S. at 271)).

Based on the plaintiffs' account of the events, this case falls

within that category of obvious violations. See Vinyard v. Wilson,

311 F.3d 1340, 1348 (11th Cir. 2002) (use of pepper spray excessive

in a case where the individual was handcuffed in the back of a

patrol car); Headwaters Forest Def., 276 F.3d at 1130 (use of

pepper spray on peaceful protesters was excessive); Park v.

Shiflett, 250 F.3d 843, 853 (4th Cir. 2001) (use of pepper spray

from close range on an unarmed and nonthreatening individual was

excessive); Adams v. Metiva, 31 F.3d 375, 387 (6th Cir. 1994) (use
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of spray on blinded and incapacitated person in a car was

excessive).

According to the plaintiffs' account, the agents never

gave them an opportunity to exit the area, but simply began hitting

them and then, without warning, pepper sprayed them. Indeed, as

discussed earlier, some of the individual plaintiffs were sprayed

in the face, at close range, even after they had fallen down on the

ground. Based on both a "consensus of cases of persuasive

authority," Wilson, 526 U.S. at 617, and the general prohibition

against excessive force, we conclude that, according to the facts

on this present record, the defendants should have been on notice

that the actions attributed to them by the plaintiffs were in

violation of the Fourth Amendment.

We move next to the third prong of the test and ask

"whether an objectively reasonable officer would have believed the

conduct was unreasonable." Jennings, 499 F.3d at 19 (emphasis

added). This inquiry acknowledges the possibility for "reasonable

mistakes":

It is sometimes difficult for an officer to

determine how the relevant legal doctrine,

here excessive force, will apply to the

factual situation the officer confronts. An

officer might correctly perceive all of the

relevant facts but have a mistaken

understanding as to whether a particular

amount of force is legal in those

circumstances. If the officer's mistake as to

what the law requires is reasonable, however,

the officer is entitled to the immunity

defense. . . . Qualified immunity operates in
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this case, then, just as it does in others, to

protect officers from the sometimes "hazy

border between excessive and acceptable

force."

Id. at 205 (quoting Priester v. Rivera Beach, 208 F.3d 919, 926-27

(11th Cir. 2000)). The scope of protection is intended to include

"all but the plainly incompetent or those who knowingly violate the

law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

The defendants contend that they reasonably believed that

the use of force was appropriate in view of the crowd's

provocations and the escalating situation outside of the

condominium complex. Yet, the defendants' submissions are

exceedingly deficient on this ground and silent with respect to the

individual claims of force. The only affidavit submitted by the

government, that of Special Agent Byers, makes a passing reference

to the crowd's growing size and failure to leave the gated area,

and says nothing about the individual plaintiffs' claims of

excessive force and injury. Even assuming some general need for

crowd control, protection under qualified immunity requires an

evaluation of the specific circumstances giving rise to the

injuries sustained by each plaintiff, which inevitably will entail

individualized assessments of their claims. One could imagine that

even if a reasonable officer would have believed it appropriate to

use pepper spray in response to an unruly mob (and thus be entitled

to immunity), applying pepper spray into the face of an

unthreatening journalist lying on the ground might well not be
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protected under the mantle of qualified immunity. The appropriate

analysis therefore requires an individualized inquiry of each

plaintiff's circumstances.

Given this evidentiary gap, the district court's entry of

summary judgment for the defendants on qualified immunity grounds

was premature. However, this is not to say that qualified immunity

should not be considered later, on a more fully developed record.

Thus, we vacate the entry of qualified immunity for the defendants

on the individual plaintiffs' claims and remand.

III. Conclusion

For the foregoing reasons, we affirm the district court's

grant of summary judgment on the First Amendment claims. We also

affirm on the Fourth Amendment claims, except as to the six

individual plaintiffs. With respect to these plaintiffs, we vacate

on the Fourth Amendment claims and remand for further proceedings

consistent with this opinion. Given that we are remanding, we do

not reach the question of whether the plaintiffs have standing to

seek injunctive relief, and leave it to the district court to

address the issue if appropriate. All parties will bear their own

costs.

It is so ordered.