Camilo-Robles v. Hoyos

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 97-2260

GRANCID CAMILO-ROBLES,

Plaintiff, Appellee,

v.

DR. GUILLERMO HOYOS AND DR. HECTOR O. RIVERA-GONZALEZ,

Defendants, Appellants.

No. 97-2261

GRANCID CAMILO-ROBLES,

Plaintiff, Appellee,

v.

PEDRO A. TOLEDO-DAVILA,

Defendant, Appellant.

No. 97-2262

GRANCID CAMILO-ROBLES,

Plaintiff, Appellee,

v.

GILBERTO DIAZ-PAGAN,

Defendant, Appellant.

No. 97-2264

GRANCID CAMILO-ROBLES,

Plaintiff, Appellee,

v.

PABLO SANTIAGO-GONZALEZ,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

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

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Stahl, Circuit Judge.

Roberto Lefranc Romero, with whom Martinez Alvarez, Menendez

Cortada & Lefranc Romero was on brief, for appellants Hoyos and

Rivera-Gonzalez.

John F. Nevares, with whom Ayleen Charles, Lizzie Portela, and

Smith & Nevares were on brief, for appellant Toledo-Davila.

Orlando Duran-Medero, with whom Ricardo R. Rodriguez Padilla

Law Offices was on brief, for appellant Diaz-Pagan.

Roberto Santana Aparicio, with whom Marisol Vega Coputo and

Del Toro & Santana were on brief, for appellant Santiago-Gonzalez.

Judith Berkan, with whom Peter Berkowitz was on brief, for

appellee.

June 29, 1998

SELYA, Circuit Judge. After suffering indignities at the

hands of an unstable police officer, plaintiff-appellee Grancid

Camilo-Robles sued an array of defendants under 42 U.S.C. 1983

(1994). In due season, five such defendants, appellants here,

moved for summary judgment on the ground of qualified immunity.

The district court rejected their motions (in some instances

without waiting for an opposition). Although the timing of the

district court's ruling and the lack of any authoritative insight

into the court's reasoning complicate our task, we affirm.

I. BACKGROUND

Parking privileges denote special status in our motorized

society, and emotions often run high when a parking space is at

stake. This case vividly illustrates that verity.

On May 13, 1994, Miguel Diaz-Martinez, a police officer

assigned to the Bayamon Criminal Investigation Corps (CIC), sought

to park in an area reserved for judges at the Bayamon Judicial

Center. Camilo-Robles, a security guard sworn to protect that

hallowed ground, told Diaz-Martinez that he could not park there.

In response to this perceived affront, Diaz-Martinez placed his

hand on his gun, arrested Camilo-Robles, handcuffed him, shoved the

prisoner into his (Diaz-Martinez's) police cruiser, and drove to

the station house (pausing to punch Camilo-Robles in the stomach

and slap him in the face). Upon their arrival, Diaz-Martinez

forced the plaintiff to remove his belt and shoes and placed him in

a cell with other detainees. Cooler heads prevailed, and Diaz-

Martinez's prey was released, uncharged, some three hours later.

Camilo-Robles sued Gilberto Diaz-Pagan (director of the

Bayamon CIC), Pablo Santiago-Gonzalez (Bayamon area commander), and

Pedro A. Toledo-Davila (superintendent of police). In addition to

these high-ranking police officials, Camilo-Robles named a host of

other defendants including inter alia two psychiatrists who worked

for the police department, Drs. Guillermo Hoyos and Hector O.

Rivera-Gonzalez. Invoking section 1983, Camilo-Robles alleged that

these five named defendants (collectively, "the appellants") had

deprived him of his civil rights by their deliberate indifference

in carrying out their supervisory responsibilities (with the result

that Diaz-Martinez, a demonstrably unstable officer, was allowed to

remain on active duty).

The district court issued its scheduling order on

February 21, 1996. In December of that year, the appellants filed

summary judgment motions. Camilo-Robles responded on the merits to

the psychiatrists' summary judgment motion, but served a cross-

motion seeking additional time in which to oppose the police

officials' motions, see Fed. R. Civ. P. 56(f), explaining that they

had stonewalled during pretrial discovery. The district court

granted this cross-motion without limit of time and referred all

pending discovery matters to a magistrate judge. Lassitude set in,

and the magistrate made no rulings until August 26, 1997. Two days

later, the district court denied the appellants' summary judgment

motions in a curt, two-page order. These appeals followed.

II. A CAREER TO MAKE ST. SEBASTIAN WEEP

Because the allegations of liability and the defenses

thereto hinge upon what actions the various defendants took (or

should have taken) in light of Diaz-Martinez's flagitious history

of violence, the latter's career is of great relevance. We extract

the facts from the summary judgment record, resolving all conflicts

in favor of the plaintiff. See Garside v. Osco Drug, Inc., 895

F.2d 46, 50 (1st Cir. 1990).

Diaz-Martinez joined the police force as a cadet in March

1984. That December, he was suspended for an assault. Despite the

suspension, he became a regular officer and served as such for the

next five years. His record reflects numerous disciplinary

infractions involving violent and/or threatening behavior we

count at least eighteen many of which entailed unwarranted

brandishing of his weapon. The denouement occurred in August 1989

when, after assaulting his wife, Diaz-Martinez entered the Catano

police station, seized a shotgun, and held several gendarmes

(including the acting police superintendent) hostage for several

hours.

Subsequent to this bizarre display, Diaz-Martinez was

committed involuntarily to a psychiatric hospital and diagnosed as

schizophrenic. The hospital discharged him and three months later

a police psychiatrist, Dr. Pagan-Davis, recommended that he be

separated from the force and given a civilian position. The police

department suspended Diaz-Martinez in 1990 and formally expelled

him in 1991.

Justice sometimes moves in mysterious ways. Diaz-

Martinez successfully appealed his expulsion and the police

department reinstated him in May 1993. While on desk duty, he

assaulted a civilian. Nevertheless, Drs. Hoyos and Rivera-Gonzalez

found Diaz-Martinez free from mental illness and fit for active

duty (with no restrictions) when they examined him in August. The

department promptly rearmed him and assigned him to work in a high-

tension neighborhood. On September 8, 1993 (the day following his

return to active duty), Diaz-Martinez engaged in an altercation

with two unarmed, law-abiding neighborhood residents. In the

course of this fracas, he shot both of them, wounding one and

killing the other. See Diaz v. Diaz Martinez, 112 F.3d 1, 2 (1st

Cir. 1997) (summarizing the facts of that episode). The police

department immediately confiscated his weapon.

After a self-imposed exile, Diaz-Martinez returned to

desk duty in November 1993. On January 20, 1994, while still

unarmed, Diaz-Martinez threatened to kill a fellow officer at the

Bayamon Radio Center. Six days later, he was transferred to the

Bayamon CIC. On February 28, 1994, Drs. Hoyos and Rivera-Gonzalez

again examined Diaz-Martinez and again declared him ready for

unrestricted active duty and fit to carry a weapon. The police

department rearmed him forthwith.

The incident that sparked this suit occurred in May of

1994. The police department again expelled Diaz-Martinez that

August. He eventually pled guilty to voluntary manslaughter in

connection with the September 1993 shootings and was sentenced to

serve a prison term.

III. THE LEGAL LANDSCAPE

Before tackling the vagaries of each defendant's appeal,

we first must map the crossroads at which the qualified immunity

doctrine and principles of supervisory liability under section 1983

intersect. We then discuss pertinent questions of appellate

jurisdiction and pause to note the somewhat tentative nature of

orders denying summary judgment in the qualified immunity context.

A. Qualified Immunity and Supervisory Liability.

Federal law provides a cause of action when an

individual, acting under color of state law, deprives a person of

federally assured rights. See 42 U.S.C. 1983. Public officials

who stand accused of civil rights violations under section 1983

nonetheless can avoid liability for money damages by showing either

that they did not violate a right clearly established under federal

law or that they acted with objective legal reasonableness. SeeHarlow v. Fitzgerald, 457 U.S. 800, 819 (1982); Buenrostro v.

Collazo, 973 F.2d 39, 42 (1st Cir. 1992).

The Supreme Court has emphasized that a section 1983

plaintiff must allege a violation of a clearly established right

secured either by the Constitution or by some other federal law.

See County of Sacramento v. Lewis, S. Ct. , n.5 (1998)

[1998 WL 259980 at *4 n.5]. Here, the plaintiff vaults this hurdle

with room to spare. The right to be free from unreasonable seizure

(and, by extension, unjustified arrest and detention) is clearly

established in the jurisprudence of the Fourteenth Amendment

(through which the Fourth Amendment constrains state action). The

right to due process of law (and, by extension, to be free from

police brutality) is likewise clearly established under the

Fourteenth Amendment (through which the Fifth Amendment constrains

state action).

We have not had occasion to address the question whether,

to be liable under section 1983, a supervisor must have violated an

independent, "clearly established" right, or whether a supervisor

may be liable based only on his proximity to a subordinate's

violation of a "clearly established" right. Other circuits,

however, have addressed this interplay between the "clearly

established" requirement and supervisory liability. We follow

their lead and adopt an approach that comports with the core

principle of qualified immunity by protecting supervisory officials

from suit when they could not reasonably anticipate liability.

When a supervisor seeks qualified immunity in a section

1983 action, the "clearly established" prong of the qualified

immunity inquiry is satisfied when (1) the subordinate's actions

violated a clearly established constitutional right, and (2) it was

clearly established that a supervisor would be liable for

constitutional violations perpetrated by his subordinates in that

context. See Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 456

(5th Cir. 1994); Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir. 1994).

In other words, for a supervisor to be liable there must be a

bifurcated "clearly established" inquiry one branch probing the

underlying violation, and the other probing the supervisor's

potential liability.

Here, both elements are satisfied. We already have noted

that the plaintiff's clearly established rights were violated, seesupra Part III(A), and it is equally well settled that a

deliberately indifferent police supervisor may be held liable for

the constitutional violations of his subordinates. See Diaz, 112

F.3d at 4.

The question, then, reduces to the test of objective

legal reasonableness. This test does not serve as a proxy for

liability, because even state actors who commit constitutional

violations may be entitled to qualified immunity. See, e.g.,

Ringuette v. City of Fall River, F.3d , (1st Cir. 1998)

[No. 96-1107, slip op. at 10]; Brennan v. Hendrigan, 888 F.2d 189,

194 (1st Cir. 1989). Instead, the test's utility is restricted to

the qualified immunity inquiry. In that milieu, the test provides

a method for determining whether, in relation to a clearly

established right, a defendant's conduct was (or was not)

reasonable. Withal, objective legal reasonableness is a concept

that grew up in the prototypical section 1983 context a context

in which a state actor ("A") inflicts injury directly on a victim

("V") in derogation of V's constitutionally-protected rights.

Where the context shifts as where A is not a direct actor (i.e.,

he himself did not perpetrate the seizure, detention, or assault of

which V complains), but, rather, stands accused of permitting a

third person ("B"), also a state actor, to violate V's rights the

test remains intact, but its focus shifts. In this tri-cornered

situation, objective legal reasonableness (and, hence, qualified

immunity) necessarily depends upon the relationship between A's

acts or omissions and B's conduct.

This brings us to the doctrine of supervisory liability,

which holds that a supervisor (defined loosely to encompass a wide

range of officials who are themselves removed from the perpetration

of the rights-violating behavior) may be liable under section 1983

if he formulates a policy or engages in a practice that leads to a

civil rights violation committed by another. See City of Oklahoma

City v. Tuttle, 471 U.S. 808, 823-24 (1985). Notice is a salient

consideration in determining the existence of supervisory

liability. See Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87,

93 (1st Cir. 1994) (treating as "[a]n important factor . . .

whether [the supervisor] was put on notice of behavior which was

likely to result in the violation of . . . constitutional rights").

Nonetheless, supervisory liability does not require a showing that

the supervisor had actual knowledge of the offending behavior; he

"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-Rodriguez, 23 F.3d

576, 582 (1st Cir. 1994).

To demonstrate 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. See Manarite v.

City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992). This

formulation correctly implies that deliberate indifference alone

does not equate with supervisory liability; a suitor also must show

causation. See Maldonado-Denis, 23 F.3d at 582 (explaining that

the supervisor must have "had the power and authority to alleviate

[the violation]"). In other words, the plaintiff must

"affirmatively connect the supervisor's conduct to the

subordinate's violative act or omission." Id. This affirmative

connection need not take the form of knowing sanction, but may

include tacit approval of, acquiescence in, or purposeful disregard

of, rights-violating conduct. See id.

This returns us to the point of our beginning: the

relationship between qualified immunity and supervisory liability.

By definition, a defendant who claims qualified immunity must do so

either on the theory that the asserted right is not clearly

established or on the theory that the conduct attributed to him

satisfies the test of objective legal reasonableness. See Harlow,

457 U.S. at 819. Because the constitutional rights and supervisory

liability doctrine that underlie Camilo-Robles's claim are clearly

established, the qualified immunity analysis here turns on whether,

in the particular circumstances confronted by each appellant, that

appellant should reasonably have understood that his conduct

jeopardized these rights. See Ringuette, F.3d at [slip op.

at 10]; Berthiaume v. Caron, F.3d , (1st Cir. 1998) [No.

97-1958, slip op. at 7].

The inquiry into qualified immunity is separate and

distinct from the inquiry into the merits. Consequently, courts

are well-advised to separate "qualified immunity" analysis from

"merits" analysis whenever practicable. In some circumstances,

however, these inquiries overlap. So it is here: the appellants

stand accused of culpable conduct in a setting that requires an

inquiry into deliberate indifference (which is customarily a

merits-related topic).

Given this setting, discerning whether a particular

appellant's behavior passes the context-specific test of objective

legal reasonableness to some extent collapses the separate

"qualified immunity" and "merits" inquiries into a single analytic

unit. Such an approach is unusual, but we occasionally have

engaged in precisely this sort of merits-centric analysis in the

course of deciding questions of qualified immunity. See, e.g.,

Morales v. Ramirez, 906 F.2d 784, 787 (1st Cir. 1990) (explaining

"that, in certain cases, some aspect of the merits may be

inexorably intertwined with the issue of qualified immunity")

(citation and internal quotation marks omitted); Amsden v. Moran,

904 F.2d 748, 753-58 (1st Cir. 1990) (examining the substance of

the plaintiff's due process claims to determine the defendants'

eligibility for qualified immunity).

We weave these strands together into a thread that binds

these appeals. The plaintiff alleges a violation of clearly

established constitutional rights and asserts that several

defendants bear supervisory liability for that violation.

Responding to these allegations, each defendant claims qualified

immunity and, because both the rights in question and each

defendant's susceptibility to supervisory liability are clearly

established, these qualified immunity claims hinge on whether that

defendant's conduct was objectively reasonable. Since our inquiry

into objective legal reasonableness involves deliberate

indifference, however, we are compelled to engage the merits to a

greater extent than is usual.

B. Considerations Affecting Appellate Jurisdiction.

Were we reviewing a district court's grant of summary

judgment based on qualified immunity, our course would be clear:

we would determine de novo whether the affected defendant was

entitled to a favorable judgment as a matter of law. Here,

however, the summary judgment motions were denied, not granted, and

this fact complicates our analysis. In the qualified immunity

realm, the dividing line between appealable and non-appealable

denials of summary judgment is blurred.

Cases are clear enough at the extremes. We know, for

instance, that when a motion for summary judgment that asserts

qualified immunity is rejected, the denial cannot ground an

interlocutory appeal if the operative question is "whether or not

the pretrial record sets forth a genuine issue of fact for trial."

Johnson v. Jones, 515 U.S. 304, 320 (1995). Similarly, we know

that the denial of such a motion is immediately appealable if the

operative question is purely legal in nature. See id. at 319. In

fine, "a summary judgment order which determines that the pretrial

record sets forth a genuine issue of fact, as distinguished from an

order that determines whether certain given facts demonstrate,

under clearly established law, a violation of some federally

protected right, is not reviewable on demand." Stella v. Kelley,

63 F.3d 71, 74 (1st Cir. 1995); accord Behrens v. Pelletier, 516

U.S. 299, 306 (1996).

Determining the existence vel non of appellate

jurisdiction in cases closer to the equator is more difficult.

Some examples may be useful. In Diaz, we determined that we lacked

jurisdiction to entertain an interlocutory appeal from a pretrial

decision denying qualified immunity because the decision turned on

the existence of a factual conflict or on what the lower court

perceived to be a factual conflict. 112 F.3d at 4-5. This

contrasts with situations in which the district court assumes a set

of facts and decides, as a matter of law, that those facts will not

support a qualified immunity defense in which event jurisdiction

exists to entertain an immediate appeal. See Behrens, 516 U.S. at

313.

If this were not complex enough, the district judge is

not legally obliged to explain the basis on which a denial of

summary judgment rests. See Johnson, 515 U.S. at 319

(acknowledging that "[d]istrict judges may simply deny summary

judgment motions without indicating their reasons for doing so");

Domegan v. Fair, 859 F.2d 1059, 1065-66 (1st Cir. 1988) (similar).

When the district court's order is unilluminating, the appellate

court must fend for itself. Anticipating the dilemma that such an

inscrutable order may pose in the qualified immunity context, the

Court prophesied "that a court of appeals may have to undertake a

cumbersome review of the record to determine what facts the

district court, in the light most favorable to the nonmoving party,

likely assumed." Johnson, 515 U.S. at 319. Hence, we must perform

the equivalent of an archeological dig and endeavor to reconstruct

the probable basis for the district court's decision.

Here, the district court denied the appellants' motions

for summary judgment before the plaintiff filed oppositions to

several of those motions. As a result of this hastiness, the data

before the court were limited and limited further by the

appellants' apparent intransigence in furnishing discovery.

Withal, the district court had before it a great deal of

information from sources such as the psychiatrists' summary

judgment papers, the plaintiff's opposition to the psychiatrists'

motion, and evidentiary materials submitted by a former codefendant

in connection with an earlier summary judgment motion. The court

also had before it all the appellants' moving papers (which contain

more than a smidgen of intramural fingerpointing). The court was

at liberty to consult all these sources, and we, too, can consult

them in endeavoring to determine whether the court below based its

decision on contested facts as opposed to a quintessentially legal

judgment.

C. A Note of Caution.

Having performed the exercise described in Part III(B),

supra, we conclude, for reasons made manifest in our subsequent

discussion of the appellants' claims, that we have jurisdiction

over all these appeals and that the lower court appropriately

denied all four summary judgment motions. We note, however, that

this endorsement of the district court's ruling has a somewhat

tentative cast. We offer three pertinent observations.

First, our approach assumes, despite the awkwardness of

the conceptual fit, that deliberate indifference cases are amenable

to standard qualified immunity analysis a proposition that

logically may be debatable, but that nevertheless follows from the

Supreme Court's broad pronouncements. See, e.g., Harlow, 457 U.S.

at 819. Second, a pretrial refusal to grant qualified immunity is

only a way station in the travel of a case. When a defendant fails

on a pretrial qualified immunity claim, he nonetheless can plead

qualified immunity as an affirmative defense and resurrect the

claim at trial. See Ringuette, F.3d at [slip op. at 6];

King v. Macri, 993 F.2d 294, 299 (2d Cir. 1993); Vazquez Rios v.

Hernandez-Colon, 819 F.2d 319, 329 (1st Cir. 1987). Third,

notwithstanding a pretrial rejection of qualified immunity, the

merits remain open.

IV. THE PSYCHIATRISTS

The plaintiff alleges that the psychiatrists, Drs. Hoyos

and Rivera-Gonzalez, evaluated Diaz-Martinez on February 28, 1994,

with complete indifference to the constitutional rights of others

and recklessly declared him fit for duty and able to carry a

weapon. The psychiatrists' joint summary judgment motion addressed

this claim on two levels, positing that they enjoy (1) absolute

immunity from suit under Puerto Rico law, and (2) qualified

immunity from suit under federal law because their performance was

objectively reasonable and, in any event, had no direct bearing on

the decision to restore an armed Diaz-Martinez to active duty. We

grapple with these asseverations in sequence.

A. Absolute Immunity.

A district court's refusal to grant summary judgment on

an absolute immunity claim is, generally speaking, within the scope

of our appellate jurisdiction on interlocutory appeal. SeeAcevedo-Cordero v. Cordero-Santiago, 958 F.2d 20, 21 (1st Cir.

1992). In this instance, it invokes the Puerto Rico Medico-

Hospital Professional Liability Insurance Act, which provides in

pertinent part:

No health service professional may be included

as a defendant in a civil suit for damages due

to malpractice caused in the performance of

his/her profession while said health service

professional acts in compliance with his

duties and functions as an employee of the

Commonwealth of Puerto Rico, its dependencies,

instrumentalities and municipalities.

P.R. Laws Ann. tit. 26, 4105 (1994). The psychiatrists contend

that this statute immunizes them because they examined Diaz-

Martinez pursuant to the terms of a contract purporting to free

them from liability under section 4105 (incorrectly identified as

section 5105). We do not agree.

In the first place, the statute on its face applies to

"employees." The contract states that the psychiatrists are

independent contractors, not employees, and the record at the very

least raises unanswered factual questions anent the statute's

applicability. See, e.g., Flores Roman v. Ramos-Gonzalez, 127 P.R.

Dec. 601, 608-09 (P.R. 1990) (examining the relevant contract to

determine whether a given defendant is an employee or independent

contractor); see also Nieves v. University of P.R., 7 F.3d 270, 273

(1st Cir. 1993) (discussing section 4105).

In the second place, even if section 4105 applies, it at

most gives government-employed physicians immunity from claims

brought under Puerto Rico law. A state-conferred immunity cannot

shield a state actor from liability under section 1983. SeeMartinez v. California, 444 U.S. 277, 284 n.8 (1980) ("Conduct by

persons acting under color of state law which is wrongful under 42

U.S.C. 1983 . . . cannot be immunized by state law.") (quoting

Hampton v. City of Chicago, 484 F.2d 602, 607 (7th Cir. 1973)).

Indeed, a regime that allowed a state immunity defense to trump the

imposition of liability under section 1983 would emasculate the

federal statute. See id. We therefore reject the proposition that

absolute immunity entitled the psychiatrists to summary judgment.

B. Qualified Immunity.

Before confronting the psychiatrists' qualified immunity

defense, we make a preliminary point. The psychiatrists are

private practitioners, not government employees in the traditional

sense. Consequently, one might wonder whether they could be liable

at all under section 1983, or, if so, whether they would be

entitled to qualified immunity even on a "best case" scenario. The

answer to both questions is in the affirmative.

A private party's conduct is attributable to the state if

the state "has so far insinuated itself into a position of

interdependence with [the private party] that it must be recognized

as a joint participant in the challenged activity." Barrios-

Velazquez v. Asociacin de Empleados del Estado Libre Asociado, 84

F.3d 487, 494 (1st Cir. 1996) (citation and internal quotation

marks omitted; alteration in the original). Here, the

psychiatrists acted under contract with the police department to

assist in a necessary departmental function: the evaluation of

officers. Hence, the psychiatrists, virtually by their own

admission (see supra Part IV(A)), are for purposes of this case

state actors performing in concert with the department. As such,

they are both subject to suit under section 1983 and eligible for

the balm of qualified immunity. See Rodriques v. Furtado, 950 F.2d

805, 814 (1st Cir. 1991) (extending qualified immunity to a

physician who agreed to assist the police in a body cavity search).

That said, the psychiatrists' pretrial case for qualified

immunity lacks force. First, perscrutation of the record discloses

uncontested facts sufficient to permit us to exercise jurisdiction

over their appeal. Second, those facts, construed favorably to

Camilo-Robles, adequately ground a tripartite conclusion (1) that

Diaz-Martinez posed an unusually serious risk of harm, (2) that the

psychiatrists had actual knowledge of the risk, and (3) that they

failed to take readily apparent steps to alleviate that risk.

Third, the assumed set of facts presented here reveals a reckless

disregard for the rights of others that outstrips any band of

protection afforded by the doctrine of qualified immunity in cases

of deliberately indifferent conduct.

We see no need to differentiate between the two

psychiatrists for present purposes; after all, they themselves have

abjured such a course and presented a united front both below and

on appeal. By like token, it seems unnecessary to rehearse all the

facts that contribute to our conclusions. Instead, we offer a

sampling.

The psychiatrists approached the February

1994 evaluation with abundant

foreknowledge of Diaz-Martinez's case,

gleaned from their August 1993 evaluation

of him and their ensuing certification

that he was fit for active duty at that

time.

On September 1, 1993, a few days after

they issued the August 1993

certification, the psychiatrists received

a psychologist's report (the Sedra

Report), dated July 14, 1993, which noted

that Diaz-Martinez denied reality, that

he was immature, impulsive, and anxious,

and that "his tension level could make

him . . . act[] out." Dr. Sedra later

described this last observation as

equivalent to saying that Diaz-Martinez

"could explode at any time." Despite

receiving this report, the psychiatrists

did not revisit their original

certification of Diaz-Martinez as fit for

duty, and seem to have ignored the Sedra

Report during the February 1994

examination.

On September 8, 1993, Diaz-Martinez shot

two innocent civilians, thus confirming

Dr. Sedra's warnings. Still, the

psychiatrists (both of whom knew of that

incident) nonetheless recertified Diaz

Martinez for rearming and active duty in

February 1994 without an intervening

psychological evaluation.

To administer their government contract,

the psychiatrists set up a system whereby

each doctor would independently interview

each referred officer, thus ensuring two

detached opinions. Although the

psychiatrists knew Diaz-Martinez's

stunning history of violence, they

nonetheless deviated from this protocol

in their February 1994 evaluation.

Indeed, their entire examination

consisted of one joint interview.

After conducting their joint interview,

the psychiatrists declared Diaz-Martinez

"fit to engage in all of the duties

inherent to a law enforcement agent . . .

(including the use of a regulation

weapon)," without carrying out any

further investigation.

By his own admission, Dr. Hoyos neglected

to read the Caldern Report (which

detailed numerous instances of Diaz-

Martinez's aberrant behavior) before

signing off on Diaz-Martinez's status.

Dr. Rivera-Gonzalez, who did read the

Caldern Report, brushed it aside as

insufficient to warrant further

investigation.

There is no evidence to suggest that the

psychiatrists requested or consulted

Diaz-Martinez's current complaint history

before they gave him a clean bill of

health in February 1994.

The presence of these essentially uncontested facts

strongly suggests that the district court denied the psychiatrists'

motion for summary judgment as a matter of law. We therefore have

appellate jurisdiction. See Behrens, 516 U.S. at 313.

Exercising that jurisdiction and reviewing the district

court's decision de novo, we believe that under at least one

plausible scenario depicted by these assumed facts in which the

psychiatrists did not comply with their own evaluation protocol,

failed to credit or take seriously the psychologist's report, made

only a cursory effort to gather relevant data, and virtually

ignored the information that did come to their attention the

psychiatrists carried out an objectively unreasonable course of

conduct.

Of course, the psychiatrists have a fallback position:

they maintain that their conduct (whether or not objectively

reasonable) did not cause harm to Camilo-Robles because they

functioned merely as advisors and did not themselves make the

decision to return a fully armed Diaz-Martinez to the streets.

This contention is better suited to a discussion of the merits, but

to the extent that some causal connection is necessary to find that

a state actor has failed the test of objective legal

reasonableness, that nexus exists here.

To be sure, the psychiatrists did not have official

authority to rearm Diaz-Martinez and restore him to active duty.

Nonetheless, the summary judgment record makes it pellucid that the

psychiatrists knew that their certification of Diaz-Martinez would,

in Dr. Hoyos's phrase, "most probably" result in the officer's

immediate rearming and return to active duty as it had in every

other previous instance. The police superintendent likewise

attested to the significance of the psychiatrists' role. According

to him, once the examining psychiatrist "certifies in writing that

[an officer] is authorized to bear arms . . . we proceed to give

back the weapon." Then, too, the director of the Bayamon CIC

stated that the psychiatrists not the police hierarchy made the

decision to rearm Diaz-Martinez. Finally, the record permits a

reasonable inference that the psychiatrists eschewed easily

accessible steps to forestall the rearming of Diaz-Martinez and

instead certified his fitness for unrestricted active duty.

Because this is an adequate showing of causation to support a

denial of qualified immunity, the psychiatrists' fallback position

avails them naught.

V. THE REMAINING APPELLANTS

The plaintiff alleges that the remaining three appellants

have supervisory liability under section 1983 for their individual

failures to keep Diaz-Martinez unarmed and away from the public.

The affected appellants unanimously deny this averment. Their

separate summary judgment motions maintain that, at the least,

qualified immunity attaches. Consequently, we troll the record in

search of facts bearing on the putative immunity of each appellant.

We then examine those collected facts to determine the basis of the

district court's decision (and, thus, the existence vel non of

appellate jurisdiction). Lastly, we proceed to determine whether

the district court erred in rejecting the qualified immunity

defense.

A. Diaz-Pagan.

The summary judgment record reveals the following

uncontested facts concerning Diaz-Pagan.

In January 1994, Diaz-Martinez joined the

Bayamon CIC. Throughout his tenure

there, Diaz-Pagan served as the unit's

director.

As director, Diaz-Pagan had the authority

to oversee and countermand his

subordinates' staffing decisions and/or

to dispatch police officers for special

human relations training to minimize the

likelihood of future outbursts.

Diaz-Pagan also possessed the authority

to ensure that Diaz-Martinez would remain

in an administrative position, removed

from public contact.

By early 1994, Diaz-Pagan had read the

Caldern Report and was aware of Diaz-

Martinez's extensive history of violence,

including the 1989 hostage-taking

incident, a 1993 death threat against

Diaz-Martinez's landlord, the September

1993 shootings, and a very recent death

threat against a fellow officer. This

compendium of incidents led Diaz-Pagan to

advise the area commander, Col. Pablo

Santiago-Gonzalez, that Diaz-Martinez

"displays a pattern of behavior which

requires special attention."

Notwithstanding the foregoing, Diaz-Pagan

neither recommended Diaz-Martinez for

special human relations training nor

intervened to assure that Diaz-Martinez's

assignments would insulate him from

public contact.

Diaz-Pagan did not alert his subordinates

who were in charge of day-to-day

operations to the risk that he himself

foresaw.

Despite his foreknowledge of the imminent

danger that rearming Diaz-Martinez

entailed, Diaz-Pagan did not take any

measures to influence whether Diaz-

Martinez would be rearmed.

Although he professed "surprise[]" when

he learned (prior to the incident

involving Camilo-Robles) that Diaz-

Martinez's weapon had been restored,

Diaz-Pagan acquiesced in that action and

did not attempt to rescind it.

When Diaz-Pagan left for vacation on

April 18, 1994, he neglected to inform

his temporary replacement, Capt. Jorge

Hernandez-Colon, of Diaz-Martinez's

disciplinary record.

B. Santiago-Gonzalez.

The summary judgment record reveals the following

uncontested facts concerning Santiago-Gonzalez.

Santiago-Gonzalez served as Bayamon area

commander during the time in question.

Santiago-Gonzalez knew of Diaz-Martinez's

violent history. He had received the

Caldern Report and had personally

overseen the efforts to calm the affected

neighborhood in the wake of the 1993

double shooting.

Diaz-Pagan identified Santiago-Gonzalez

as his "boss" and as "the person who has

control of the Area." Thus, the chain-

of-command observations set forth as to

Diaz-Pagan apply with at least equal

force to Santiago-Gonzalez.

The superintendent of police testified

that: "It is the discretion of the Area

Commander [Santiago-Gonzalez] to assign

[officers] to the different units."

Santiago-Gonzalez enjoyed the discretion

to assign Diaz-Martinez to desk duty or

other administrative work, yet failed to

use this power to make certain that the

rogue officer would not come in contact

with the public.

C. Toledo-Davila.

The summary judgment record reveals the following

uncontested facts concerning Toledo-Davila.

Toledo-Davila served as police

superintendent throughout the time in

question.

The police superintendent is the only

person empowered to assign a regulation

weapon to a member of the police force,

and has plenary discretion to withhold or

confiscate a weapon in those cases in

which he deems such action appropriate.

See Puerto Rico Police Department

Personnel Reg. 9.3(1)(a), (d).

Toledo-Davila knew the details of Diaz-

Martinez's violent record. He also knew

that the Puerto Rico Department of

Justice had assumed control of the

investigation into the September

shootings, and that as of February 1994

its investigation was ongoing.

Toledo-Davila abdicated his duty to

exercise independent judgment in

determining which officers should bear

arms. In that respect, he stated that

once a psychiatrist certifies an officer

as fit for duty, "the superiors are

notified . . . [a]nd then we proceed to

give back the weapon."

D. Appellate Jurisdiction.

After full consideration of the record, we believe that

the district court supportably assumed a set of documented facts

from which it denied the supervisors' motions for summary judgment

as a matter of law. Consequently, we have jurisdiction to review

the district court's decision.

Our rationale is straightforward. On the record as it

stands, the facts as to these appellants' powers, functions,

conduct, and omissions are not seriously disputed, nor are the

facts as to what corrective measures were available to them. This

makes it very likely that the district court assumed the facts to

be as stated. That the district court did not wait for the

plaintiff's opposition a practice that we do not commend

buttresses this conclusion and suggests that the court did not

believe it necessary for the plaintiff to adduce additional facts

because the facts that already were in the record, assumed as true

and interpreted favorably to the plaintiff, were insufficient as a

matter of law to warrant the application of qualified immunity.

Thus, we turn to the correctness of that conclusion, again taking

the supervisors one by one.

E. Qualified Immunity Diaz-Pagan.

Diaz-Pagan trumpets that Diaz-Martinez was not under his

direct command, and that, in all events, he was on vacation when

Diaz-Martinez allegedly assaulted Camilo-Robles. Based largely on

these undisputed facts, Diaz-Pagan maintains that he deserves

qualified immunity because there is no causal link between his

conduct and the assault on Camilo-Robles.

This argument speaks less to qualified immunity and more

to the merits and a denial of summary judgment on the merits,

even in a section 1983 case, is not immediately appealable. SeeDomegan, 859 F.2d at 1061. Still, a plausible causal chain is

relevant to the objective legal reasonableness of a state actor's

conduct and, viewed in that light, Diaz-Pagan's contentions are not

entirely off base. At any rate, on the assumed set of facts the

court supportably could have concluded that Diaz-Martinez presented

a serious risk of harm and that Diaz-Pagan knew as much; put

another way, Diaz-Pagan "was put on notice of behavior which was

likely to result in the violation of the constitutional rights of

citizens." Febus-Rodriguez, 14 F.3d at 93. The court likewise

could have concluded that Diaz-Pagan had the authority to prevent

recurrences of Diaz-Martinez's erratic behavior, but nevertheless

failed to take obvious steps within his power to reduce or

eliminate that risk. Similarly, the court could have found the

requisite causal connection. Finally, the court could have

concluded that Diaz-Pagan's omission was outside the range of

mistaken judgments that the qualified immunity doctrine protects.

Seen in that light, Diaz-Pagan's conduct was not objectively

reasonable and, thus, qualified immunity does not attach.

F. Qualified Immunity Santiago-Gonzalez.

Santiago-Gonzalez similarly claims qualified immunity on

the ground that the causal connection between his functions and

Diaz-Martinez's transgressions is too attenuated to justify the

imposition of section 1983 liability. As above, we examine

causation insofar as it bears on qualified immunity (i.e., as an

element of objective legal reasonableness).

On the facts proffered by Santiago-Gonzalez and amplified

elsewhere in the record, it is plain that Santiago-Gonzalez knew

that Diaz-Martinez was a ticking time bomb and also knew (or should

have known) that Diaz-Martinez, if restored to active duty, was

likely to commit acts that would violate the constitutional rights

of others. As was true of Diaz-Pagan, Santiago-Gonzalez had both

the authority and the opportunity to prevent Diaz-Martinez from

interacting with the public, yet failed to intervene. Accordingly,

his indifference and the assault on Camilo-Robles were causally

linked. In a nutshell, on the assumed set of facts revealed by the

summary judgment record the district court supportably could

conclude that Santiago-Gonzalez acted in an objectively

unreasonable fashion, thus exempting his conduct from the

prophylaxis of qualified immunity.

G. Qualified Immunity Toledo-Davila.

At the end of the day, Toledo-Davila maintains that he

and the officers under his command followed proper police

procedures when rearming Diaz-Martinez. He adds that in all events

he acted in good faith and qualified immunity protects officers

who make good-faith mistakes. See Anderson, 483 U.S. at 641.

Although we find no evidence to suggest that Toledo-Davila (or the

other appellants, for that matter) acted in bad faith, we

nonetheless conclude that Toledo-Davila cannot wrap himself in the

mantle of qualified immunity.

The extant record eloquently refutes Toledo-Davila's

assertion that his conduct was, as a matter of law, objectively

reasonable. Toledo-Davila knew of Diaz-Martinez's vicious

propensities and the peril presented; he had the sole de jure

responsibility to authorize rearming; and yet he treated Diaz-

Martinez not as a dangerous sociopath, but as any other officer.

To cinch matters, a causal relationship existed between Toledo-

Davila's conduct and the incident at the Bayamon Judicial Center.

We think that the police superintendent's latitudinarian approach

in the face of Diaz-Martinez's patent instability was so far

outside the realm of reasonableness that it rendered him ineligible

for protection under the qualified immunity doctrine.

VI. CONCLUSION

We add an eschatocol of sorts. This is a hard case, for

it does not readily fit the mold cast by the Court's precedents.

We believe it is possible that the Court, when confronted with a

claim of qualified immunity in a deliberate indifference case, may

recognize the awkwardness of the fit and formulate a special set of

rules to cover such situations. Until further guidance emerges,

however, we have little choice but to apply the existing qualified

immunity paradigm across the board. We have endeavored to do so

here.

We need go no further. Qualified immunity protects "all

but the plainly incompetent or those who knowingly violate the

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

none of the appellants consciously chose to violate the law. If

the assumed facts indicated that they were merely inattentive or

careless, then qualified immunity would shield them despite the

fact that Diaz-Martinez violated the plaintiff's clearly

established rights. See, e.g., Ringuette, F.3d at [slip

op. at 12]; Brennan, 888 F.2d at 194. Here, however, indulging

reasonable pro-plaintiff inferences, the record shows conduct on

the appellants' part that can best be described as reckless and

wanton conduct that is emblematic of the plain incompetency to

which the Malley Court alluded. The appellants' behavior is,

therefore, outside the wide band of mistaken police judgments that

the qualified immunity doctrine is intended to shield and the

appellants, to a man, are not entitled to summary judgment.

Affirmed. Costs in favor of appellee.