Asociación De Periodistas De P.R. v. Mueller

• Decision Date: 16 May 2012
• Docket Number: No. 09–2385.,09–2385.
• Citation: 680 F.3d 70
• Parties: 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; Victor Sánchez, individual capacity and on behalf of his respective Conjugal Partnership; Joel Lago–Román, individual capacity and on behalf of her respective Conjugal Partnership; Cosette Donalds–Brown, individual capacity and on behalf of her respective Conjugal Partnership; Víctor Fernández, individual capacity and on behalf of his Conjugal Partnership; Annette Alvarez, 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; Keith Byers, individually and in his official capacity and on behalf of his Conjugal Partnership; Luis S. Fraticelli, individually and in his official capacity and on behalf of his Conjugal Partnership; Jose Figueroa–Sancha, individually and in his official capacity and on behalf of his Conjugal Partnership, Defendants–Appellees.
• Court: U.S. Court of Appeals — First Circuit

680 F.3d 70

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; Victor Sánchez, individual capacity and on behalf of his respective Conjugal Partnership; Joel Lago–Román, individual capacity and on behalf of her respective Conjugal Partnership; Cosette Donalds–Brown, individual capacity and on behalf of her respective Conjugal Partnership; Víctor Fernández, individual capacity and on behalf of his Conjugal Partnership; Annette Alvarez, 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; Keith Byers, individually and in his official capacity and on behalf of his Conjugal Partnership; Luis S. Fraticelli, individually and in his official capacity and on behalf of his Conjugal Partnership; Jose Figueroa–Sancha, individually and in his official capacity and on behalf of his Conjugal Partnership, Defendants–Appellees.

No. 09–2385.

United States Court of Appeals, First Circuit.

Heard Oct. 7, 2010.

Decided May 16, 2012.

Catherine Crump, with whom Aden J. Fine, ACLU Foundation, Josué Gonzalez Ortiz, William Ramirez, ACLU of Puerto Rico Foundation, and Nora Varga Acosta were on brief, for appellants.

H. Thomas Byron, III, Attorney, Appellate Staff, Civil Division, United States Department of Justice, with whom Tony West, Assistant Attorney General, Rosa E. Rodriguez–Velez, United States Attorney and Barbara L. Herwig, Attorney, Appellate Staff, Civil Division, United States Department of Justice were on brief, for appellees.

Before BOUDIN and HOWARD, Circuit Judges, and BARBADORO,^* District Judge.

HOWARD, Circuit Judge.

This appeal involves claims for damages and injunctive relief by several journalists against FBI agents, who the journalists allege used excessive force against them during the execution of a search warrant at an apartment complex in San Juan, Puerto Rico.¹ In a prior appeal in this case we vacated a grant of summary judgment based on qualified immunity. See Asociación de Periodistas de P.R. v. Mueller, 529 F.3d 52 (1st Cir.2008) (“ Periodistas II ”). After further development of the record on remand, the district court again granted summary judgment to the defendants on the Fourth Amendment excessive force claims. We affirm.

I. Background

We recite the facts in the light most favorable to the plaintiffs, “drawing all reasonably supported inferences in [their] favor.” Estate of Bennett v. Wainwright, 548 F.3d 155, 159 (1st Cir.2008). There is one qualification: “evidence from the moving party as to specific facts can be accepted by the court where no contrary evidence is tendered by the party opposing summary judgment.” Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir.2010). The recitation is lengthy but necessarily so given the nature of the events.

At approximately 10:00 AM on February 10, 2006, FBI agents executed a search warrant at the apartment home of Lillian Laboy–Rodriguez (“Laboy”). The search was one of six conducted by the FBI that day involving an alleged domestic terrorismplot by a Puerto Rican organization known as “Los Macheteros” (the Machete–Wielders). This organization, dedicated to the independence of Puerto Rico, has been involved in numerous prior violent acts and its former leader was killed in a shoot-out with the FBI less than a year earlier. For some reasons not explained, the FBI did not have assistance from local law enforcement for the operation.

The complex within which the apartment was located was separated from the public street by a permanent, corral-style fence made of metal bars. This fence offered two points of entry into the complex: a narrow pedestrian gate adjacent to a guard booth manned by an employee of the complex and a wider gate for automobiles. The apartment was located on the sixth floor of the building.

Before the search began, Special Agent Keith Byers, who served as the FBI's media representative for the operation, briefed the participating agents about the day's plan. According to Byers, the agents were to establish a perimeter around the operation; he underscored that the media had “the right to do anything outside the perimeter that does not interfere with the operation and/or the safety of the agents and the public.”

The FBI agents assert that upon arrival they confirmed with the complex's private security guard that access into the complex was limited to residents or those with legitimate business on the site. The agents did not, however, establish a formal “perimeter” by posting guards, using tape or other means. It does appear that an agent was generally positioned in the vicinity of the pedestrian gate into the complex while the search was being executed upstairs.

Both civilians and law enforcement personnel entered and exited the complex during the search, using both gates; but there is no indication that anyone other than residents, persons having business within the complex, or law enforcement officers entered the complex during most of the period of the lengthy search.² The agents also state that anyone attempting to visit the sixth floor was escorted by an FBI agent.

While the FBI executed the warrant, more than a dozen reporters and other members of television and radio crews arrived to report on the FBI's activities starting at about 11:00 AM. Among the journalists were the individual plaintiffs: television reporters Normando Valentín and Annette Alvarez, radio reporters Cossette Donalds Brown and Joel Lago–Román, and television cameramen Victor Sánchez and Víctor Fernández.

As the day progressed, the reporters were joined by an increasing number of the general public. Some of these people covered their faces with bandanas and some shouted negative comments at FBI personnel. The plaintiffs say that the crowd were never more than twenty or thirty peaceful, non-threatening people. The defendants, in contrast, describe the crowd as being larger and as including potentially violent individuals. The plaintiffs concede that a couple of individuals in the crowd were yelling at the agents.

The FBI agents at the site were concerned enough by the growing crowd that they elected to call-in a quick reaction force to arrive by helicopter and provide additional assistance to the search team. Several reporters went to the helicopter landing area to report on the action and to try to obtain comments. The plaintiffs say the reporters were peaceful; the defendants, that the plaintiffs' actions interfered with law enforcement operations.

At the complex, Agent Byers suspected that one of the allegedly unruly people in the crowd was using his mobile phone to take pictures of him and other agents, leading Byers to fear that this person might be associated with Los Macheteros, as the group was known to publish pictures of FBI agents and promote them as targets. Byers also surmised that those individuals in the crowd who had covered their faces were affiliated with Los Macheteros.

Additionally, while the group of on-lookers grew, Special Agent José Figueroa heard from a photographer at the scene, Rafael Rivera, that some people in the crowd were discussing plans to harm FBI employees. The plaintiffs disclaim overhearing such plans in the crowd and generally dispute that Rivera made this statement to Agent Figueroa.

Later in the afternoon, as the search was concluding at about 2:00 PM, Laboy's daughter Natalia Hernández–Laboy (“Hernández”) and Francisco Rodriguez Burns, a reporter, arrived at the scene. Hernández and Rodriguez entered the complex, but Agent Byers then told Rodriguez that he was not permitted within the complex. Before Rodriguez left, Hernández gestured to the reporters outside the fence in a way that the reporters interpreted as an invitation to enter the grounds.

Between ten and twenty reporters then quickly entered the complex through the pedestrian gate. The plaintiffs acknowledge that the gate was held open by Ricardo Santos, the head of a local labor union. Nearby agents responded swiftly to block the reporters from entering further into the complex grounds, first ordering the reporters to return to the public street. At least a couple of journalists moved beside or beyond the first group of agents who had intercepted the journalists. The agents ordered the journalists to retreat from the complex and began forcibly to impede the path of the reporters and attempt to push them back towards the gate.

The plaintiffs say that they indicated their willingness to leave and that they intended to comply with the agents' demands, but their ability to exit swiftly was blocked by the narrowness of the pedestrian gate and possibly because more people were crowding at the entrance. One journalist requested that the vehicle gate be opened to facilitate the exodus. The plaintiffs admit that some of their members continued to report on the unfolding events as they exited, but they assert that they intended to leave. In what appears to have been less than a minute, the situation inside and around the complex escalated further because the physical confrontation incited the crowd of citizens and remaining journalists outside the complex, who were only a few feet from the agents, separated only by an easily permeated fence.

All of the parties were shouting and yelling in the course of a direct physical confrontation between the heavily armed agents and journalists. One agent testified that someone in the crowd outside the complex spat on his face as he attempted to control the group inside the complex. Inside the complex, numerous agents testified that they perceived the crowd to be either maintaining its...