SANTOS ESCALERA-SALGADO; OLGA PAGÁN-TORRES; J.E.P., Minor; D.E.P., Minor, Plaintiffs, Appellants,
UNITED STATES, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO HON. BRUCE J. MCGIVERIN, U.S. MAGISTRATE JUDGE.
Guillermo Ramos Luiña for appellants.
Hinshelwood, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, with whom Chad A. Readler, Acting
Assistant Attorney General, Rosa Emilia
Rodríguez-Vélez, United States Attorney, and
Mark B. Stern, Attorney, Appellate Staff, Civil Division,
U.S. Department of Justice, were on brief, for appellee.
Torruella, Thompson, and Kayatta, Circuit Judges.
KAYATTA, CIRCUIT JUDGE.
Escalera-Salgado, his wife, and their two minor children sued
the United States under the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346(b), 2671-2680, seeking to recover
damages for injuries suffered when a Department of Homeland
Security agent shot Escalera during the execution of a search
warrant at Escalera's residence. The district court
entered judgment for the United States after a bench trial.
For the following reasons, we affirm.
October 29, 2011, Puerto Rico Police Department officers and
U.S. Homeland Security Investigations (HSI) agents convened
to execute a search warrant at Escalera's
residence.Puerto Rico Police Department officers
informed the HSI agents that Escalera was a drug trafficker
and a gang leader, and that he had large amounts of drugs,
firearms, and cash stashed at his residence. Because of these
risk factors, HSI was tapped to "clear" the
residence before local police conducted the search. Before
daylight, an HSI agent knocked on Escalera's door,
announced police presence, and -- after receiving no response
-- forcibly entered the apartment. There were no lights on in
the apartment other than the powerful flashlights held by the
agents. HSI agent Menéndez saw Escalera's
silhouette emerging from a bedroom. In Spanish,
Menéndez yelled "police," and ordered
Escalera to show his hands and stay still. Ignoring these
commands, Escalera lifted his shirt, reached for his
waistband, and moved for cover behind a bedroom wall. His
waistband contained no discernible "bulge." Before
Escalera drew his hand from his waistband area, both
Menéndez and another HSI agent shot at Escalera's
center mass. One of the two rounds lodged in Escalera's
elbow. A subsequent search revealed no weapon either on
Escalera or in the apartment. The search did, however, turn
up three kilograms of cocaine, $4, 000 in U.S. currency, and
a gun cleaning kit.
together with his wife and minor children, filed an FTCA
claim for damages stemming from his gunshot injury. The
parties consented to have the case adjudicated by a
magistrate judge ("the district court"). Following
a bench trial, the district court ruled for the United
States. In so doing, the district court assumed that Escalera
had proven a claim of common-law battery under Puerto Rico
law. It rested its decision, instead, upon two conclusions:
First, that even if the HSI officers' conduct constituted
common-law battery, the United States could not be held
liable unless the unlawfulness of the officers' conduct
was clearly established at the time they acted; and second,
that at the time the officers acted, no precedent clearly
established that the officers' conduct was unlawful.
Escalera timely appealed.
passing the FTCA, Congress provided "a limited
congressional waiver of the sovereign immunity of the United
States for tortious acts and omissions committed by federal
employees acting within the scope of their employment."
Díaz-Nieves v. United
States, 858 F.3d 678, 683 (1st Cir. 2017); see
also 28 U.S.C. § 1346(b)(1). In general, the FTCA
does not waive sovereign immunity for intentional torts, but
it does allow claims against the United States for
"assault, battery, false imprisonment, false arrest,
abuse of process, or malicious prosecution" arising from
"acts or omissions of investigative or law enforcement
officers of the United States Government." 28 U.S.C.
§ 2680. To assess liability under the FTCA, we look to
"the law of the place where the act or omission
occurred." Id. § 1346(b)(1). Puerto Rico
law therefore supplies the substantive rules of decision in
district court's qualified immunity analysis relied upon
our circuit's oft-repeated assumption "that Puerto
Rico tort law would not impose personal liability" in
tort actions "where the officers would be protected in
Bivens claims by qualified
immunity." Solis-Alarcón v.
United States, 662 F.3d 577, 583 (1st
Cir. 2011); see also Soto-Cintrón v.
United States, 901 F.3d 29, 35 (1st Cir. 2018)
("We also remain mindful of our precedent holding that
the scope of liability under Puerto Rico false imprisonment
mirrors liability under qualified immunity
principles."). This assumption was never based on Puerto
Rican authority expressly embracing the "clearly
established" inquiry employed in Bivens cases.
Rather, the assumption was based on a "parallel"
between Puerto Rico's tort law and federal qualified
immunity principles. Soto-Cintrón, 901 F.3d
at 35; see also Solis-Alarcón, 662 F.3d at
583 (noting that Puerto Rico cases that balance the
state's law enforcement function with the right of an
injured citizen to be compensated for wrongful state action
echo the "view that animates federal qualified immunity
doctrine"). Making this assumption has allowed us to
bypass the "significant question[s]" of
"whether any local court could impose damage liability
on federal officers where they would be exempt in a federal
lawsuit and whether Congress under the FTCA would expect the
federal government to shoulder such liability."
Díaz-Nieves, 858 F.3d at 687 (quoting
Solis-Alarcón, 662 F.3d at 583-84). These
questions are significant because the "legislative
history accompanying the 1974 amendment [to the FTCA] makes
clear that Congress intended 'to make the Government
independently liable in damages for the same type of
conduct that is alleged to have occurred in Bivens
(and for which that case imposes liability upon
the individual Government officials
v. United States, 54 F.3d 41, 45-46 (1st
Cir. 1995) (quoting S. Rep. No. 93-588, at 3 (1973), as
reprinted in 1974 U.S.C.C.A.N. 2789, 2791).
not decide in this case whether our repeated assumption
concerning the availability of a qualified immunity defense
in an FTCA action arising in Puerto Rico is correct. Escalera
makes no argument that the district court erred by assuming
the defense to be applicable. Instead, Escalera argues that
the district court erred in concluding that the officers did
not violate clearly established law. Turning our attention to
that argument, we ask whether the officers' actions
"violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). In assessing whether an
official's conduct violated clearly established law, we
typically reason by analogy, asking whether there is any
prior case in which the use of force was deemed unlawful
under circumstances reasonably similar to those present in
the case at hand. See Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) ("We do not
require a case directly on point, but existing precedent must
have placed the statutory or constitutional question beyond
debate."); Begin v. Drouin,
908 F.3d 829, 836 (1st Cir. 2018) ("[A] case need not be
identical to clearly establish a sufficiently specific
benchmark against which one may conclude that the law also
rejects the use of deadly force in circumstances posing less
of an immediate threat."). When a defendant invokes
qualified immunity, the burden is on the plaintiff to show
that the defense is inapplicable. See
Rivera-Corraliza v. Morales, 794 F.3d
208, 215 (1st Cir. 2015). Here, then, Escalera had the burden
to identify "controlling authority or a robust consensus
of persuasive authority such that any reasonable official in
the defendant's position would have known that the
challenged conduct is illegal in the particular circumstances
that he or she faced." Id. at 214-15 (internal
quotation marks omitted).
briefing and at oral argument, Escalera attempted to
distinguish cases in which circuit courts have held that an
officer's use of deadly force was reasonable. See
Carnabyv.City of Houston, 636 F.3d
183 (5th Cir. 2011) (use of force was reasonable);
Ontiverosv.City of Rosenberg,
564 F.3d 379 (5th Cir. 2009) (same); Reesev.Anderson, 926 F.2d 494 (5th Cir. 1991)
(same); Youngv.City of Killeen,
775 F.2d 1349 (5th Cir. 1985) (same); Andersonv.Russell, 247 F.3d 125 (4th Cir. 2001)
(same). But Escalera failed to compare his shooting to the
facts of a single case in which an officer's use of force
was held to be constitutionally excessive. Nor is this a case
in which the HSI officers' conduct was self-evidently
unlawful. The officers had ample reason to suspect danger:
(1) They had been warned that Escalera was a gang leader and
had guns in the apartment; (2) No one answered the door when
beckoned; (3) Escalera did not comply with police commands to
show his hands and to remain still; and (4) Escalera
"lifted his shirt, reached for his waistband, and moved
for cover behind a bedroom wall." Escalera's best
point is that the officers did not actually see a weapon or
the "bulge" of an apparent weapon. But he cites no
case law clearly establishing that actually seeing a weapon
is the sine qua non of reasonableness in circumstances such
as those presented here -- where ...