# Wilfredo Martinez, A/K/A Wilfredo Martinez Rodriguez v. Rafael Colon, A/K/A Rafael Colon Pizarro > Court of Appeals for the First Circuit · June 20, 1995 · 54 F.3d 980 URL: https://www.frixlaw.com/law-library/cases/9488061 ## Case - **Full name:** Wilfredo MARTINEZ, A/K/A Wilfredo Martinez Rodriguez, Plaintiff, Appellant, v. Rafael COLON, A/K/A Rafael Colon Pizarro, Et Al., Defendants, Appellees - **Court:** Court of Appeals for the First Circuit - **Decided:** June 20, 1995 - **Citations:** 54 F.3d 980 - **Precedential status:** Published - **Opinion:** Dissent by Bownes - **Judges:** Torruella, Bownes, Selya - **Cited by:** 451 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9488061 ## How later opinions describe it (automated extraction) - holding that there is no substantive due process right under the Fourteenth Amendment to be free from malicious prosecution - explaining that the plaintiff “could well have believed” 25 that the “hazing of young officers was standard fare” in the precinct and that the government acquiesced to the defendants’ actions when “bystander officers (including [a supervisor]) failed to 26 intervene during the… - stating that the actor’s conduct will be attributed to the state when it “occurs in the course of performing an actual or apparent duty of his office, or . . . is such that the actor could not have behaved in that way but for the authority of his office.” - finding no state action where an on-duty police officer shot his coworker with a police revolver at the stationhouse because the shooting arose form a personal wish to torment an acquaintance where the defendant’s status as a police officer was irrelevant to the torment - explaining that a right is "clearly established" when a "reasonably prudent state actor would have realized not merely that his conduct might be wrong, but that it violated a particular constitutional right.” ## Opinion text BOWNES, Senior Circuit Judge, dissenting. For the reasons that follow, I cannot join the majority opinion. I start with the facts. Although the majority’s factual recitation is not inaccurate, it is not a full-bodied portrayal of what happened. I. Plaintiff, Martinez, was a young (age twenty) and comparatively new member of the Puerto Rico Police Force. On the day of the events giving rise to this case, he arrived at the police station sufficiently early to be given his duty assignment. Martinez parked his car in the police parking lot. He got out of his car and started towards the police station to get his orders for the day. There were four other police officers in the lot: the defendants — Colon, Vélez and Trinidad — and Valentin, who is not a defendant. As the majority acknowledges, the defendants were, at all relevant times, on duty as police officers and acting under color of state law. The three defendants observed the events that took place in the parking lot and the police station and heard Valentin’s denigrating remarks to Martinez. None of the defendants asked Valentin to stop his verbal and physical assaults against Martinez. To put it starkly, they stood by and watched without protest Valentin “blow away” Martinez’s penis. As Martinez walked across the parking lot, Valentin said to the defendants, “Here comes Pretty Boy.” Valentin then accosted Martinez, drew his service revolver, pointed it directly at Martinez’s genital area, cocked it, put his finger on the trigger, asked Martinez if he was afraid, and then lowered the revolver. Martinez told Valentin: “Don’t horse around with that because you will kill me.” Martinez then proceeded into the station house. A short time later Valentin again confronted Martinez; this time he pushed his finger through a hole in Martinez’s undershirt and ripped the shirt open. The record does not disclose whether any words were spoken at this juncture. Martinez put his police uniform on and reported to his shift supervisor, defendant Trinidad. A short time later Valentin again assaulted Martinez. This assault was similar to the first confrontation, but with an ominous threat. This time Valentin pushed the muzzle of his loaded and cocked revolver into the front of Martinez’s pants and threatened to “blow away” Martinez’s penis. Valentin then asked Martinez if he was scared. After Valentin withdrew the weapon, Martinez moved away from him. A short time later, within minutes, Valentin again accosted Martinez. He loaded and cocked his revolver and then inserted it into the front of Martinez’s pants while continuing to verbally abuse him. The charade ended when Valentin’s revolver discharged. Valentin’s prior threat became a reality; Martinez’s penis was in fact blown away and he was rendered permanently impotent. The majority calls the shooting accidental and says, “All parties agree that the shooting ... was unintentional.” Ante at 983. Whether the shooting was accidental or not, it can be concluded, based on Valentin’s words and actions, that it was an accident that was bound to happen. What Valentin did makes Russian roulette seem like a parlor game. II. The majority’s central holding is premised on a ruling that Valentin was not acting under color of state law. In my view, the facts taken in the light most favorable to plaintiff establish that Valentin was acting under color of state law. As the majority points out: “ ‘[T]he traditional definition of acting under color of state law requires that the defendant have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of the *992 state.’” Ante at 986 (quoting West v. Atkins, 487 U.S. 42, 49 , 108 S.Ct. 2250, 2255 , 101 L.Ed.2d 40 (1988)) (ellipses and internal quotation marks omitted). Simply stated, “a person acts under color of state law “when he abuses the position given him by the State.’ ” Id. (quoting West, 487 U.S. at 50 , 108 S.Ct. at 2255 ). I think that Valentin exercised power possessed by virtue of Puerto Rico law and made possible only because he was clothed with the authority of Puerto Rico, and that he abused that power. Even if I disregard the obvious — that Valentin was in uniform, on duty, in the police station, and used his service revolver to commit the tort (all of which militate heavily in favor of a finding that Valentin abused his position as a police officer) — I believe that Valentin’s status as a police officer was the only reason the defendants took no action. If Valentin had been a private citizen and had been tormenting Martinez in the same manner, the bystander officers certainly would have intervened. The record gives rise to a reasonable inference that Valentin’s police-officer status led the bystander officers to conclude that: (1) Valentin was not mentally unbalanced to the point that he might actually shoot Martinez, but a stable person only engaged in harassment or horseplay; and (2) Valentin was skilled enough with firearms to be allowed to engage in this sort of stupidity. Consequently, the record gives rise to an inference that Valentin’s police-officer status was a sine qua non of the bystander officers’ non-intervention. In my view, this inference establishes that Valentin was acting under color of state law. The majority suggests that Martinez’s status as a police officer somehow reduced the likelihood that Martinez perceived Valentin to be acting with the imprimatur of the Commonwealth. See id. at 988 n. 6. I believe the opposite conclusion is at least as likely to be true. After the bystander officers (including Trinidad, who had supervisory authority) failed to intervene during the initial rounds of abuse by Valentin, Martinez could well have concluded that this type of hazing of young officers was standard fare in the Loiza Street Precinct. Therefore, Martinez could well have believed that the Commonwealth acquiesced in Valentin’s actions. Because Valentin was acting under color of state law, I think it pellucid that DeShaney does not bar this suit. At most, DeShaney precludes civil rights actions against state actors under the Due Process Clause for failing to protect an individual against -private violence. See 489 U.S. at 197, 109 S.Ct. at 1004. The DeShaney majority took pains to distinguish the case before it from situations where the state itself, through its own affirmative action prior to the complained-of-non-intervention, limited the victim’s freedom. Id. at 198-201, 109 S.Ct. at 1004-06 (contrasting situations where the state has taken custody of certain individuals and thereby incurred “some responsibility for [their] safety and well-being”). Here, the Commonwealth, acting through the person of Valentin, compromised Martinez’s freedom by successively assaulting him three times with a loaded service revolver. See West, 487 U.S. at 49 , 108 S.Ct. at 2255 . In my view, this infringement was more than sufficient to support Martinez’s substantive due process claim. DeShaney, 489 U.S. at 200, 109 S.Ct. at 1006 (“In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf — through incarceration, institutionalization, or other similar restraint of personal liberty — which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause.”). I believe it important to comment on three discrete parts of the majority opinion. The majority concedes that Valentin’s use of his service revolver might arguably bring his actions within the color of state law. Ante at 987. This is then rejected on two grounds: that it was not raised in the district court or plaintiffs appellate brief; and on the merits. I cannot help but wonder why the straw man approach was used. In any event, I disagree on both grounds. Fairly construed, Martinez’s argument that Valentin’s status as an on-duty police officer made him a state actor incorporates the argument that Valentin used the indicia and tools of his trade (including his service revolver) to carry out the shooting. For me, *993 this is more than enough to allow us to consider Valentin’s use of his service revolver as a factor in determining whether he was a state actor. I am also am troubled by the majority’s finding that Martinez waived his equal protection claim. Id. at 989-90. As an initial matter, I think it important to state that the claim appears to have some substance. How, after all, can it be rational for bystander officers not to intervene simply because one of their own — as opposed to a civilian — is being victimized by violence? What legitimate state objective could such inaction serve? The majority finds that Martinez abandoned this claim because he failed to “embellish” it sufficiently. Id. I do not think that the issue needed any embellishing. It was called an equal protection claim and stated relatively clearly: “If Wilfredo had been a private citizen, it seems clear that defendants-appellees would have realized that they were obliged under the law to protect him from the threat of serious damages.” Appellant’s Brief at 9. In my view, this was sufficient to put the claim in issue. Finally, I think it important to refute the majority’s suggestion that Valentin might not have been acting under color of state law even if Martinez had been a civilian. Ante at 988 n. 6 (“Had Martinez been a civilian rather than a fellow officer, the significance of Valentin’s uniform and weapon for purposes of the color-of-law determination might well have been greater.”) (emphasis supplied). I find the suggestion remarkable. If a civilian had suffered the abuse Martinez experienced at the hands of an on-duty, uniformed police officer using his service revolver in front of other officers in a police station, well-settled precedent would dictate a finding that the civilian was victimized under color of state law. We should not even hint that this may not be so. III. I also cannot agree with the majority’s conclusion that an unargued qualified immunity theory provides an alternative ground for affirmance in this case. See id. at 988-89. Under the qualified immunity doctrine, “government officials performing discretionary funetions[] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982). In determining whether a right was “clearly established” at the relevant point in time, courts must analyze it at the appropriate level of specificity. Thus, a right is not “clearly established” for qualified immunity purposes unless its contours are sufficiently clear so “that a reasonable official would understand that what he is doing violated that right.” Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987). The majority suggests that Martinez’s right to have the bystander officers intervene on his behalf was “cloaked in uncertainty” and was “murky” at the time of the relevant events. I disagree. As the majority concedes, it was settled at the time of the events in this case that [a]n officer who is present at the scene [of an arrest] and who fails to take reasonable steps to protect the victim of another officer’s use of excessive force can be held liable under section 1983 for his nonfea-sance, provided that he had a realistic opportunity to prevent the other officer’s actions. Ante at 985 (citations and internal quotation marks omitted). In my view, this line of authority controls here. The majority distinguishes this precedent by suggesting that it is inapplicable where the tortfeasor officer is not acting under the color of state law, and then concludes that Valentin was not so acting here. For the reasons I have explained above (and despite the opinion of my esteemed colleagues), I do not think that an objectively reasonable police officer could have seen Valentin’s actions as purely private. And because Valentin was acting under the color of state law, the aforementioned authority was sufficient to have informed defendants of their obligation to *994 intervene on Martinez’s behalf. See Anderson, 483 U.S. at 640 , 107 S.Ct. at 3039 (“This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”) (citation omitted). If excessive force during the course of a lawful arrest requires intervention, so too should an assault with a deadly weapon taking place during the course of an entirely unlawful seizure. I therefore disagree with the majority’s qualified immunity analysis. IV. Police officers are entrusted with great powers — including the privileged use of force — for the very purpose of preventing lawless violence. When an officer abuses those powers in front of his peers, he in effect presumes their tacit acquiescence, if not outright approval. In this situation, the other officers have a constitutional duty to intervene. I therefore respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9488061. Public record. Not legal advice.