U.S. v. Villarin Gerena, No. 76-1468

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore COFFIN; INGRAHAM
Citation553 F.2d 723
PartiesUNITED STATES of America, Appellee, v. Tomas VILLARIN GERENA, Defendant, Appellant.
Decision Date29 April 1977
Docket NumberNo. 76-1468

Page 723

553 F.2d 723
UNITED STATES of America, Appellee,
v.
Tomas VILLARIN GERENA, Defendant, Appellant.
No. 76-1468.
United States Court of Appeals,
First Circuit.
Argued Feb. 11, 1977.
Decided April 29, 1977.

John L.A. de Passalacqua, Isla Verde, P. R., with whom Victor Miguel Casal and Santos P. Amadeo, Santurce, P. R., were on brief for defendant, appellant.

Marie E. Klimesz, Atty., Dept. of Justice, Washington, D. C., with whom Julio Morales Sanchez, U. S. Atty., San Juan, P. R.,

Page 724

J. Stanley Pottinger, Asst. Atty. Gen., and Walter W. Barnett, Atty., Dept. of Justice, Washington, D. C., were on brief for appellee.

Before COFFIN, Chief Judge, INGRAHAM *, Senior Circuit Judge, and CAMPBELL, Circuit Judge.

INGRAHAM, Circuit Judge.

Tomas Villarin Gerena of the Puerto Rico Police Force struck a private citizen numerous times and arrested him without probable cause. He was convicted by a jury for violation of 18 U.S.C. § 242. 1 The trial court sentenced him to two years probation conditioned upon his resignation from the police force. 2 On appeal Villarin contests (1) the applicability of § 242 in the Commonwealth of Puerto Rico, and (2) the requirement that he leave the police force. We affirm.

Appellant moved to dismiss the indictment for lack of jurisdiction under § 242. His claim that the statute does not apply touches upon the relationship of the Commonwealth and our national government. Because many questions about this relationship are unresolved, we approach the jurisdictional issue with a scalpel rather than a bludgeon.

We resolve a threshold question by holding that appellant's victim, Jorge Osvaldo Zambrana Roche, was deprived of the exercise of "rights, privileges, or immunities secured or protected by the Constitution or laws of the United States," which is a prerequisite to a § 242 violation. Freedom from arrest without probable cause and from police violence are fundamental constitutional rights. They apply in Puerto Rico as forcefully as elsewhere. Cf. Examining Board of Engineers, Architects and Surveyors v. Flores de Otero,426 U.S. 572, 599-600, 96 S.Ct. 2264, 49 L.Ed.2d 65 n. 30 (1976). Acevedo Montalvo v. Colon, 377 F.Supp. 1332, 1335-43 (D.P.R. 1974). Like the Supreme Court, we have no need to decide whether the Fourth Amendment's protection against unreasonable arrest and the Fifth Amendment's due process clause apply directly or are funneled through the Fourteenth Amendment. Id. 426 U.S. at 601, 96 S.Ct. 2264. Because this is so, we do not consider whether a broad reading of 48 U.S.C. § 737 might also give Villarin's victim a federal remedy.

We now proceed to the jurisdictional claim briefed by the parties. In 1866, when the Thirty-ninth Congress enacted the predecessor statute to § 242, 3 and in 1870, when the Forty-first Congress extended it to "any inhabitant of any State or Territory," 4 Puerto Rico was a Spanish possession. However, "pre-acquisition" statutes are presumed to apply to United States territories. Puerto Rico v. Shell Oil Co., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937). In that case the Supreme Court held:

". . . When the Sherman Act was passed (1890), we had no insular dependencies . . . . Certainly, Congress at that time did not have Puerto Rico in mind. But that is not enough. It is necessary to go further and to say that if the acquisition of that insular dependency had been foreseen, Congress would have so varied its comprehensive language as to exclude it from the operation of the act."

Page 725

Shell Oil Co., supra, at 257, 58 S.Ct. at 169. We cannot believe that Congress intended to except the Territory of Puerto Rico from the operation of § 242. Appellant offers no reason why Congress would have withheld from Puerto Rico the protection of a statute designed to deter the misuse of official authority.

The elevation of Puerto Rico to Commonwealth status did not render § 242 inapplicable. Section 9 of the Puerto Rican Federal Relations Act, 48 U.S.C. § 734, is a general savings clause which states that United States statutes "not locally inapplicable" have equal force and effect in Puerto Rico. In Examining Board, supra, the Supreme Court held that 28 U.S.C. § 1343(3) 5 is operative in Puerto Rico. The United States District Court for the District of Puerto Rico may therefore entertain civil suits for violations of 42 U.S.C. § 1983. 6 Section 1983 is the civil counterpart of 18 U.S.C. § 242. See Monroe v. Pape, 365 U.S. 167, 184-85, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). It would be anomalous to allow § 1983 suits but prohibit § 242 prosecutions. Both statutes vindicate federal rights and give governmental officials concrete reasons for respecting those rights. We think § 242 weathered the creation of the Commonwealth as sturdily as did §§ 1983 and 1343(3).

Moreover, in Examining Board, supra, 426 U.S. at 594, n. 26, 96 S.Ct. at 2277, the Supreme Court concluded that the federal district court in Puerto Rico "possesses the same jurisdiction as that conferred on the federal district courts in the several states." Further, the Court determined that this jurisdiction was "left undisturbed" by the creation of Puerto Rico's Commonwealth status. Examining Board, supra, at 594, 96 S.Ct. 2264. In order to adopt appellant's position, we would have to hold that the district court in Puerto Rico had its jurisdiction bifurcated in regard to protecting a victim of police illegality, dependent upon whether the action is instituted civilly or criminally. There is no support in Examining Board for such jurisdictional erosion.

Appellant has offered a few closely reasoned arguments which are intriguing but unpersuasive. First, he analogizes to District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), arguing that the Commonwealth, like the District of Columbia, is sui generis. Carter exempted the District of Columbia from the operation of § 1983, but Examining Board disposed of the contention that the Commonwealth should receive similar treatment:

". . . We readily concede that Puerto Rico occupies a relationship to the United States that has no parallel in our history, but we think that it does not follow that Congress intended to relinquish federal enforcement of § 1983 by restricting the jurisdiction of the Federal District Court in Puerto Rico. It was observed in Carter, 409 U.S., at 427, (93 S.Ct., at 607) that Congress, in enacting the civil rights legislation with which we are concerned, recognized that it 'had neither the means nor the authority to exert any direct control, on a day-to-day basis, over the actions of state officials,' and that the 'solution chosen was to involve the federal judiciary.' Congress similarly lacked effective control over actions taken by territorial officials, although its

Page 726

authority to govern was plenary.28 The same practical limitations on Congress' effectiveness to protect the federally guaranteed rights of the inhabitants of Puerto Rico existed from the time of its cession and, after 1952, when Congress relinquished its control...

To continue reading

Request your trial
29 practice notes
  • United States v. Lebrón-Caceres, CRIMINAL NO. 15-279 (PAD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • January 14, 2016
    ...between the current versions of Sections 2421(a) and 2423. But it examined an analogous question in United States v. Villarin–Gerena , 553 F.2d 723 (1st Cir.1977). In that case, defendant was a member of the Puerto Rico Police Force charged and convicted for striking a citizen several times......
  • Schiller v. Strangis, Civ. A. No. 77-3116-K.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 4, 1982
    ...as defined by federal and state law); United States v. Stokes, 506 F.2d 771 (5th Cir.1975). See also United States v. Villarin Gerena, 553 F.2d 723 (1st Cir. 1977). One may argue that the "willfulness" element of the criminal statute is itself a "something more" requirem......
  • United States v. Maldonado-Burgos, Criminal No. 14–336 (DRD).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • September 8, 2015
    ...§ 2421(a)inapplicable to Puerto Rico. The First Circuit was confronted with an analogous controversy in United States v. Villarin Gerena, 553 F.2d 723 (1st Cir.1977). Although the challenged statute in Villarin is not § 2421(a), this Court finds the analysis therein to either be controlling......
  • Landrigan v. City of Warwick, No. 80-1053
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 27, 1980
    ...force or violence by law enforcement personnel violates the victim's constitutional Page 742 rights. United States v. Villarin Gerena, 553 F.2d 723, 724 (1st Cir. 1977); Clark v. Ziedonis, 513 F.2d 79, 80 n.1 (7th Cir. 1975); Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir. 1970) (discu......
  • Request a trial to view additional results
29 cases
  • United States v. Lebrón-Caceres, CRIMINAL NO. 15-279 (PAD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • January 14, 2016
    ...between the current versions of Sections 2421(a) and 2423. But it examined an analogous question in United States v. Villarin–Gerena , 553 F.2d 723 (1st Cir.1977). In that case, defendant was a member of the Puerto Rico Police Force charged and convicted for striking a citizen several times......
  • Schiller v. Strangis, Civ. A. No. 77-3116-K.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 4, 1982
    ...as defined by federal and state law); United States v. Stokes, 506 F.2d 771 (5th Cir.1975). See also United States v. Villarin Gerena, 553 F.2d 723 (1st Cir. 1977). One may argue that the "willfulness" element of the criminal statute is itself a "something more" requirem......
  • United States v. Maldonado-Burgos, Criminal No. 14–336 (DRD).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • September 8, 2015
    ...§ 2421(a)inapplicable to Puerto Rico. The First Circuit was confronted with an analogous controversy in United States v. Villarin Gerena, 553 F.2d 723 (1st Cir.1977). Although the challenged statute in Villarin is not § 2421(a), this Court finds the analysis therein to either be controlling......
  • Landrigan v. City of Warwick, No. 80-1053
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 27, 1980
    ...force or violence by law enforcement personnel violates the victim's constitutional Page 742 rights. United States v. Villarin Gerena, 553 F.2d 723, 724 (1st Cir. 1977); Clark v. Ziedonis, 513 F.2d 79, 80 n.1 (7th Cir. 1975); Jenkins v. Averett, 424 F.2d 1228, 1231-32 (4th Cir. 1970) (discu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT