Robles-Vazquez v. Tirado Garcia

• Decision Date: 06 November 1996
• Docket Number: No. 95-1375,ROBLES-VAZQUEZ,95-1375
• Citation: 110 F.3d 204
• Parties: Elba, et al., Plaintiffs, Appellants, v. Raul TIRADO GARCIA, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 204

110 F.3d 204

37 Fed.R.Serv.3d 517

Elba ROBLES-VAZQUEZ, et al., Plaintiffs, Appellants, v. Raul TIRADO GARCIA, et al., Defendants, Appellees.

No. 95-1375.

United States Court of Appeals,First Circuit.

Heard Nov. 6, 1996.

Decided April 10, 1997.

Guy L. Heinemann, New York City, with whom Edelmiro Salas Garcia, San Juan, PR, was on brief, for Plaintiffs, Appellants.

Sylvia Roger-Stefani, Assistant Solicitor General, with whom Carlos Lugo-Fiol, Solicitor General, San Juan, PR, and Edda Serrano-Blasini, Deputy Assistant Solicitor, Department of Justice, Guaynabo, PR, were on brief, for Defendants, Appellees.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and DiCLERICO, ^* District Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

Plaintiffs-appellants appeal from an order of the district court vacating an earlier $2.25 million judgment following a jury verdict in plaintiffs-appellants' favor on their individual claims under 42 U.S.C. § 1983 and the Puerto Rico Constitution. At issue is the power of the district court to grant judgment as a matter of law after a jury's verdict on a ground never raised by the parties prior to submission of the case to the jury. We reverse.

I.

We state the facts in the light most favorable to the verdict. See Aetna Casualty Surety Co. v. P & B Autobody, 43 F.3d 1546, 1552 (1st Cir.1994).

On the night of August 26, 1991, defendants-appellees Raul Tirado Garcia and Julio Olivares Febles, assistant marshals of the Superior Court of Puerto Rico, arrested Meraldo Brana Cruz at his home for nonpayment of child support pursuant to a valid arrest warrant. Brana had no criminal record, and the marshals did not consider him dangerous; they did not handcuff or frisk him before placing him in the back seat of the patrol car.

During the drive, Brana asked if they could stop by a phone so he could call a relative to arrange for payment of his child support arrearage. The police officers agreed, but Brana took advantage of the opportunity to make his escape. During the subsequent pursuit on foot, Tirado fired several shots at Brana, one of which hit him in the back of his leg.

When Tirado caught up with Brana, he shot him in the back at close range. Brana collapsed, and the marshals brought him to the hospital. Despite extensive surgery, Brana continued to endure excruciating pain, post-traumatic stress syndrome, chronic depression, stomach problems, a swollen leg, back pain, and a limp. He died on December 24, 1992 of cardiac arrhythmia, caused by the prescription drugs he had been taking for the pain.

Brana sued, among others, Tirado and the Commonwealth of Puerto Rico under 42 U.S.C. § 1983, ¹ alleging that Tirado had used excessive force in violation of the Fourth and Fourteenth Amendments to the United States Constitution ² and Article II, §§ 7 and 10 of the Puerto Rico Constitution. ³ After Brana's death, his common-law wife, Elba Robles-Vasquez, and his six children prosecuted Brana's surviving claims as his heirs. His wife and the children also sought recovery individually for their own pain and suffering, emotional distress, and other damages, relying on similar provisions of the United States and Puerto Rico Constitutions.

At the close of the plaintiffs' case, the defendants moved for judgment as a matter of law under Fed.R.Civ.P. 50(a). This motion did not include as a reason for dismissal of the wife's and children's individual claims that Tirado's actions had in no way been directed at the relationship between Brana and his wife and children. ⁴ The court denied the motion.

The jury found in Brana's favor in his own, surviving action, awarding to his heirs, on Brana's behalf, one million dollars in compensatory damages and $500,000 in punitive damages. The jury also awarded to Robles and the children, in the claims brought on their individual behalfs, $250,000 each in compensatory damages and $500,000 in punitive damages to the group as a whole.

The court remitted the punitive damages from Brana's own claims to $250,000. No appeal has been brought from the judgment entered upon Brana's claims.

The court, however, granted part of the defendants' Rule 50(b) Motion for Renewal of the Motion For Judgment as a Matter of Law and dismissed the wife's and children's individual claims under § 1983, holding that Tirado's conduct was not aimed at interfering with Brana's relationship with his family as required by First Circuit case law. See infra note 6. In a footnote, the court also dismissed plaintiffs-appellants' similar claims under the Puerto Rico Constitution, saying they were "of the same ilk" as the federal constitutional claims. As a result, the district court dismissed so much of the jury's award as granted an additional $1,750,000 in compensatory damages, and $500,000 in punitive damages, to the wife and children in their individual rights. The plaintiffs appeal from the court's granting of the part of the Rule 50(b) motion.

II.

Plaintiffs-appellants' primary argument on appeal is that defendants-appellees waived the contention that, as Tirado's alleged unconstitutional action against Brana was not aimed at the latter's relationship with his family, the plaintiff family members could not recover their individual damages resulting from Brana's injury and death. See infra note 6. The defendants did not raise this point of law in any pre-trial motion, nor did they raise it in the Rule 50(a) motion filed at trial. Also, the defendants did not object to the court's jury instructions which authorized the jury to award damages to the individual family members and made no mention before the jury retired of any legal limitation of this nature.

The first reference to the issue surfaced in a rather weak suggestion of the point in defendants-appellees' postverdict renewed motion for judgment as a matter of law made under Fed.R.Civ.P. 50(b). However, "[a] post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion." Fed.R.Civ.P. 50(b) advisory committee's note to the 1991 amendment; see also Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 723 (1st Cir.1994) (same). "The purpose of the Rule 50(b) requirement is to alert the opposing party to the movant's claim of insufficiency before the case goes to the jury, so that his opponent may possibly cure any deficiency in his case should the motion have merit, and also so that the judge may rule on the adequacy of the evidence without impinging on the jury's fact-finding province." Martinez Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565, 569 (1st Cir.1978).

An appellate court may not ordinarily consider an issue raised for the first time in a Rule 50(b) motion on the merits. See id. at 568. "[T]he exceptions [to this rule] are few and far between, and appellate discretion should not be affirmatively exercised unless error is plain and the equities heavily preponderate in favor of correcting it." Correa v. Hospital San Francisco, 69 F.3d 1184, 1196 (1st Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1423, 134 L.Ed.2d 547 (1996). ⁵

A district court has no more leeway than a court of appeals to consider an issue raised post-verdict for the first time in a Rule 50(b) motion. See generally American and Foreign Insurance Company v. Bolt, 106 F.3d 155, 159-60 (6th Cir.1997) ("While it is accepted that a judge may sua sponte grant a directed verdict pursuant to Fed.R.Civ.P. 50(a) ... allowing a judge to sua sponte raise a new issue postverdict, and proceed to overturn a jury verdict on that basis contravenes the dictates of Rule 50(b).") (citation omitted) (citing cases).

Here, one might consider it a close call whether the district court's prior failure, on its own initiative, to have barred plaintiffs' Fourteenth Amendment claims because of our "aimed at the relationship" requirement amounted to plain error, so as to allow the court to engage later in post-verdict correction. ⁶ But we need not decide that question, because clearly the district court's prior failure to have voluntarily barred plaintiffs' parallel claims under Article II, § 10 of the Puerto Rico Constitution was not plain error, if, in fact, it was error at all.

Stating that the elements of the two claims were identical, the court instructed the jury to award only one set of damages for the plaintiffs' individual claims both under the Fourteenth Amendment and the Puerto Rico Constitution. ⁷ It follows that even if the district court committed plain error in sending to the jury the plaintiffs' individual claims under the Fourteenth Amendment of the United States Constitution, the fact that it did not commit plain error in allowing the Puerto Rican constitutional prong of the claims to go forward prevented it from later allowing defendants' Rule 50(b) motion to invalidate the jury's award of individual damages to plaintiffs.

In Puerto Rico, there is no precedent of which we are aware holding that family members of a deceased victim of lethal force used by the police in violation of Article II, § 10 of the Puerto Rico Constitution either have or do not have a private right of action for their own damages derived from the victim's injury and death. No Puerto Rico opinion, however, forecloses such an action, and decisions in other, related areas of Puerto Rico law indicate that the Puerto Rico Supreme Court might allow it.

The provisions of the Puerto Rico Constitution are said to operate ex proprio vigore, without the need for an effectuating statute comparable to § 1983. The Puerto Rico Supreme Court has written, "The fact that a law has not been enacted defining privacy rights does not relieve us from our duty to give effect to that provision, since it is known that all constitutional provisions are, by their own nature, of privileged norm under the legislation, self-exercisable." Quinones v. Commonwealth, 90 P.R.R. 791, 794 (1964).

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