Torres-Rivera v. O'Neill-Cancel

• Decision Date: 03 May 2005
• Docket Number: No. 03-2627.,03-2627.
• Parties: Margaret TORRES-RIVERA; Ernid Gomez-Torres, Plaintiffs, Appellees, Guadalupe Gomez-Cora; Talina A. Fernandez-Torres; Ramona Cora-Huertas; Angel Santiago-Cora, Plaintiffs, v. Charles O'NEILL-CANCEL, Defendant, Appellant, Ernesto Espada-Cruz; John Doe, Defendants.
• Court: U.S. Court of Appeals — First Circuit

406 F.3d 43

Margaret TORRES-RIVERA; Ernid Gomez-Torres, Plaintiffs, Appellees, Guadalupe Gomez-Cora; Talina A. Fernandez-Torres; Ramona Cora-Huertas; Angel Santiago-Cora, Plaintiffs, v. Charles O'NEILL-CANCEL, Defendant, Appellant, Ernesto Espada-Cruz; John Doe, Defendants.

No. 03-2627.

United States Court of Appeals, First Circuit.

Heard March 9, 2005.

Decided May 3, 2005.

Julio Cesar Alejandro Serrano, with whom William Vazquez Irizarry, Secretary of Justice, Jo Ann Estades, Director of Federal Litigation Division, Department of Justice, Eileen Landron Guardiola, Eduardo A. Vera Ramirez, and Landron & Vera, LLP were on brief, for appellant.

David A. Cerda, with whom Sigfredo A. Irizarry-Semidei was on brief, for appellees.

Before TORRUELLA, SELYA, and LYNCH, Circuit Judges.

LYNCH, Circuit Judge.

A fifteen-year old boy, Ernid Gomez, was beaten by an on-duty Puerto Rico Police officer, Ernesto Espada-Cruz ("Espada"). Another law enforcement officer at the scene, appellant Charles O'Neill-Cancel ("O'Neill"), had restrained Ernid against a wall by training his gun on the boy. O'Neill also pointed the gun at Ernid's mother, Margaret Torres-Rivera ("Torres-Rivera"), when she came out to see what was happening, and kept her from interfering. While O'Neill did not himself beat Ernid, neither did he stop Espada from beating the child. Espada was convicted of criminal assault on Ernid in a Puerto Rico court.

Ernid, his mother, and Angel Santiago-Cora, another boy who was beaten by Espada, then brought a federal civil rights action under 42 U.S.C. § 1983 for damages against Espada and O'Neill. A jury found Espada liable for use of excessive force. The jury also found O'Neill liable under section 1983 for his involvement with Espada's excessive use of force against Ernid and also, under Puerto Rico law, for negligently injuring Torres-Rivera during the assault. O'Neill appeals from the jury verdict, both as to liability and damages.

We affirm. In doing so, we reject O'Neill's argument that this excessive force case should not be viewed under the Fourth Amendment objective-reasonableness test, see Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), but rather under a Fourteenth Amendment "shock the conscience" test, see County of Sacramento v. Lewis, 523 U.S. 833, 854, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). We also reject O'Neill's argument that the Fourth Amendment excessive force claim is actionable only in arrest or pretrial detention situations.

I.

We recite the facts in the light most favorable to the jury verdict. See Correa v. Hosp. San Francisco, 69 F.3d 1184, 1188 (1st Cir.1995).

On August 29, 1998, at about 9:30 PM, the Puerto Rico Treasury Department and Puerto Rico Police engaged in a joint operation to inspect businesses at an intersection in Arroyo, Puerto Rico, for compliance with Treasury Department regulations. After the inspection, the officers issued traffic tickets to drivers at the intersection. Appellant O'Neill, a Treasury Department agent, and defendant Espada, a police officer, both participated in the operation.

While the officers were issuing traffic tickets, two children about 300 feet away from the intersection shouted obscenities at the ticket writing officers. While the other officers remained at the intersection, Espada, who was wearing police uniform, walked up the street to confront the shouting youths. O'Neill, who was in plain clothes, got into a minivan and drove after Espada to provide backup.

Ernid was standing with his cousin in front of his grandmother's house across from the shouting children. He was not one of the shouting children. The shouting children hid as Espada and O'Neill approached. O'Neill drove to Ernid's house, got out of the van, and pointed his gun at Ernid and his cousin, ordering them to put themselves against the wall. Ernid testified, "And I see [O'Neill] getting out of the minivan, point[ ]s [the gun] at us, and tells us to get up against the wall and that if we were to move or to run, he would shoot at us." O'Neill stood about ten feet from Ernid. Espada walked up the street and shouted, "Come over here and tell me that."

Angel Santiago-Cora, an eighteen-year old who lived up the street from Ernid's grandmother's house, walked up and saw O'Neill pointing the gun at Ernid and his cousin. Scared, he retreated back around a street corner so that he was out of sight but only about thirty feet from O'Neill. When he saw officer Espada, who, unlike O'Neill, was wearing a police uniform, he decided to approach him, but Espada pulled out his nightstick and beat Angel five or six times with the nightstick. As he was hit, Angel screamed, "Ow, ow, ow, why are they hitting me, I just got here, I just got here. I don't know anything, ow, ow, ow, why are you hitting me?" Ernid, still facing the wall, heard the screams.

Ernid's mother, Torres-Rivera, who was inside Ernid's grandmother's house, heard Angel screaming. She went outside and shouted, "What happened?" Espada stopped beating Angel and walked around the corner to the front of the house.

As Ernid's mother, Torres-Rivera, walked towards the street from the house, O'Neill turned the gun (which until then was still pointed at Ernid and his cousin) and pointed it at Torres-Rivera's face. Torres-Rivera immediately raised her hands and said, "Oh my God, what's happening?" Espada at this time was speaking with an unidentified third officer, who told Espada that Torres-Rivera was a security guard. Espada walked up to Torres-Rivera and said to her, "I don't care if you are a guard." Torres-Rivera asked Espada to explain what was happening with Ernid. At this point, O'Neill lowered his gun, but kept it out and did not put it away in his holster. Torres-Rivera kept her hands up the entire time because she was afraid.

Espada told Torres-Rivera that the boys (Ernid and his cousin) were shouting profanities at the officers. Torres-Rivera said that if that were true she would beat Ernid herself in front of the officers. Both Ernid and Ernid's sister, Talina, who was also at the scene, denied that Ernid shouted at the police.

Espada then walked over to Ernid, and, with his nightstick, hit Ernid in the testicles. Ernid "twisted down and bent over a little bit, but [he] was afraid to move ... because [he] was told that if [he] was to move or run, they would shoot at [him]." Torres-Rivera watched as Espada beat her child. She did not dare to intervene because O'Neill still had his gun out. She did not even lower her hands. She looked at O'Neill and said, "Don't hit him. Don't hit my boy. It wasn't him."

Espada continued to hit Ernid three more times in the shoulders and the back. Espada taunted Ernid while he was beating him, saying "shout now" and "shout, you're a tough guy." Throughout, O'Neill stood where he was and did not intervene to stop Espada, and kept his gun out. Ernid and Torres-Rivera were afraid to move, mindful of O'Neill's gun. After these blows, Espada searched Ernid, "in a very brutal way, striking [him] really hard, ... slapping [him] on the way down [his] body." Espada found nothing on Ernid.

At this point, Ernid's grandmother, who had come out of the house sometime during the incident, moved Torres-Rivera out of the way and begged Espada to stop hitting Ernid. Seeing Ernid's grandmother, who Angel knew well, Angel then limped from around the corner, yelling to Ernid's grandmother that he had been hit, and then fell at her feet. Espada turned his attention from Ernid to Angel and taunted Angel by saying, "Get up off the ground, you jerk, you wuss, you." Angel then got up. A group of officers arrived at that point, many of them laughing at the scene. Angel's brother then arrived and after hearing that Angel had been beaten, told Angel to get Espada's badge number. After Angel asked Espada for his badge number, Espada asked Angel if he wanted to get hit again. O'Neill then drove off, and the remaining officers, including Espada, left on foot.

Afterwards, Torres-Rivera and her sister took Ernid to the emergency room. Ernid told Torres-Rivera, "Mami, it hurts me a lot." The emergency room doctor examined Ernid. Ernid's "left testicle was all swollen, red, with ... a hematoma." The medical records also indicated trauma in Ernid's left shoulder. For two to three weeks after the beating, Ernid felt pain when urinating or walking, and he did not move much due to the pain. Ernid developed dysuria,¹ which lasted long after the beating. At the emergency room, Torres-Rivera herself had to be given tranquilizers as a result of the trauma.

Ernid's grades declined after the beating. Ernid and Torres-Rivera also saw a psychologist for therapy for five or six sessions. Even close to five years after the incident, Ernid testified during trial that he was scared around police officers. "I see a police officer, I get nervous, I get scared and I go far away from them. I don't want to be close to where the cops are."

O'Neill and his fellow officers did not file a report about the incident. The plaintiffs brought state criminal charges against the officers. At a police line-up shortly after the incident in response to these charges, the plaintiffs identified Espada. The plaintiffs were also called to identify O'Neill at a line-up shortly after the incident, but the police were unable to go through with the identification because O'Neill was not represented by an attorney. As a result, the plaintiffs were not able to identify O'Neill until a separate line-up two months after the beating. By that time, O'Neill had grown long hair and a full beard and the plaintiffs failed to identify him. At the time of the beating, O'Neill was clean shaven and had short hair.

Espada was convicted of criminal assault and battery. The plaintiffs then brought this federal suit under 42 U.S.C. § 1983 in August, 1999, alleging that Espada and O'Neill violated their rights under the First, Fourth, Fifth,...