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 objectivereasonableness 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.
4

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 eighteenyear 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.
8

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 TorresRivera 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.

10

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.

11

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."

12

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.

13

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.

14

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.

15

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."

16

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.
17

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, and
Fourteenth Amendments to the U.S. Constitution. The plaintiffs also brought
supplemental Puerto Rico tort law claims.

18

Jury trial was held from August 6 through August 13, 2003. 2 Neither Espada
nor counsel representing him appeared for trial. O'Neill's defense strategy at
trial was to blame Espada. He argued that Espada was rightfully convicted for
criminal assault and did injure the plaintiffs, but that O'Neill did not see or hear
Espada's assault and so he should not be held responsible for Espada's acts.

19

The trial judge gave the following instruction to the jury:

20

The claim of Ernid Gomez against O'Neill arises from the alleged failure of
O'Neill to intervene to protect him from Espada's physical assault.

21

...

22

Members of the jury, citizens of the United States are protected against the use
of excessive force by the Fourth Amendment of the [C]onstitution of the
United States. The reasonableness of a particular seizure depends not only on
when it is made but also on how it is carried out.

23

...

24

The reasonableness of the particular use of force must be judged from the
perspective of a reasonable officer on the scene.

25

...

26

The question is whether the officer's actions are objectively reasonable in light
of the facts and circumstances confronting the officer, without regard to the
underlying intent or motivation of the officer.

27

...

28

Law enforcement officers, members of the jury, sometimes have an affirmative

duty to intervene, which is enforceable under the due process clause of the
Fourth Amendment. For example, an officer who is present at the scene of a
detention or an arrest, who is aware of what is going on and fails to take
reasonable steps to protect the victim of another officer's use of excessive force,
can be held liable under Section 1983 of the Civil Rights Act[] for his
nonfeasance, provided that that officer, the onlooker officer, had a realistic
opportunity to prevent the other officer's actions.

29

A constitutional duty to intervene may also arise if the onlooker officer is

instrumental in assisting the actual attacker or aggressor to place the victim in a
vulnerable position.

30

The jury found, by special verdict form, that Espada violated Ernid's Fourth
Amendment rights by using excessive force, and awarded Ernid $100,000 in
compensatory damages.3 The jury also found that O'Neill violated Ernid's
Fourth Amendment rights by failing to intervene during the use of excessive
force, and awarded Ernid $100,000 in compensatory damages. Lastly, the jury
found that Espada and O'Neill negligently caused damage to Torres-Rivera
under Puerto Rico law and awarded her $20,000 in compensatory damages
from each defendant.

31

O'Neill timely appealed.

II.
32

On appeal, O'Neill argues: 1) the district court erred by allowing the plaintiffs
to add the failure to intervene claim against O'Neill without adequate prior
notice; 2) the district court's jury instructions were erroneous as to the failure to
intervene claim because a) the instructions used the Fourth Amendment
"objective reasonableness" standard rather than the Fourteenth Amendment
"shock the conscience" standard, and b) the instructions failed to include all the
elements of a failure to intervene claim and thus did not limit the damages for
which O'Neill should be held liable; 3) the district court erred by denying
O'Neill qualified immunity; and 4) the verdict against O'Neill for negligence
with respect to Torres-Rivera was not adequately supported by evidence.

33

A. Adequate Notice of the Failure to Intervene Claim

34

O'Neill argues that he was unfairly surprised by the failure to intervene claim
against him, which he represents was a "last-minute amendment to the
pleadings ... through argument at trial" that "had the effect of preventing ...
O'Neill from conducting significant discovery on the failure to intervene claim."
He argues that "allegations in the complaint, as well as the subsequent
pleadings filed with the Court failed to give O'Neill any reasonable notice that
he would be facing trial for failing to intervene with Espada's beating of Ernid
Gomez."

35

This contention is without merit, in light of the record. The allegations in the
complaint were that Espada and O'Neill, "acting under color of law, illegally
and maliciously assaulted, pointed a firearm, threatened with serious bodily
harm and terrorized coplaintiffs ... for no valid reason." Although the complaint
did not specify the role of each defendant, the pleadings are sufficient under
liberal notice pleading standards to give notice to O'Neill that the plaintiffs
were alleging that O'Neill was present during, and contributed to, Espada's
beating of Ernid. There is no heightened pleading requirement for section 1983
civil rights claims. See Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517
(1993); Educadores Puertor-riqueos en Accin v. Hernndez, 367 F.3d 61, 6667 (1st Cir.2004).

36

The plaintiffs also clearly informed O'Neill of their failure to intervene claim in
pretrial motions. For example, in March 2001, seventeen months before trial,
the plaintiffs' response to O'Neill's second motion for summary judgment stated
that O'Neill was "the government officer who stood by Espada-Cruz while the
brutal acts were committed upon plaintiffs" and that O'Neill "aided and assisted
Espada-Cruz's brutal attacks on the plaintiffs, instead of preventing them"
(emphasis added). If O'Neill failed to pursue his defense to that theory in the
ensuing seventeen months, as he now asserts, he has only himself to blame.

37

Other parts of the record further undermine O'Neill's claim. During a July 31,
2002 status conference held in chambers, the plaintiffs outlined the merits of
their failure to intervene claim against O'Neill and cited case law in support of
their position.

38

O'Neill's appellate argument that he was surprised by the failure to intervene

claim is further belied by the fact that in his January 23, 2003 motion for
summary judgment, he devoted an entire section to addressing the failure to
intervene claim, making many of the same arguments he now makes on appeal.
There was no lack of notice.

B. Jury Instructions
39

O'Neill argues that the trial judge erred by not instructing the jury properly on
the failure to intervene claim against him in that: 1) the trial judge used the
Fourth Amendment "objective reasonableness" standard rather than the
Fourteenth Amendment "shock the conscience" standard; and 2) the trial judge
did not include all the elements of a failure to intervene claim in the
instructions, and thus did not limit the damages for which O'Neill should be
held liable.

40

In the proceedings below, O'Neill did not submit jury instructions on the failure
to intervene claim. At the pre-charge jury instruction conference, O'Neill
argued that the proposed jury instructions on the failure to intervene claim were
inadequate, but there was a great deal of confusion as to exactly what were
O'Neill's precise requests for modification to the instructions. O'Neill did not
submit any specific language he wished to be included, and only made an
oblique reference to the "shock the conscience" standard. After the jury charge
and before jury deliberations, the court asked O'Neill if there were any
objections to the jury instructions. O'Neill responded in the negative.

41

At the time of the jury trial, the version of Fed.R.Civ.P. 51 in effect read, "No
party may assign as error the giving or the failure to given an instruction unless
that party objects thereto before the jury retires to consider its verdict."
Fed.R.Civ.P. 51 (2003 ed.).4 Our interpretation of this Rule has been strict.
Connelly v. Hyundai Motor Co., 351 F.3d 535, 544 (1st Cir.2003). In this
circuit, "[e]ven if the initial request for an instruction is made in detail, the
requesting party must object again after the instructions are given but before
the jury retires for deliberations." Foley v. Commonwealth Elec. Co., 312 F.3d
517, 521 (1st Cir.2002). By failing to object when invited to do so by the
district court, O'Neill failed to preserve his claims of error as to the jury
instructions.5

42

When an objection to a jury instruction is forfeited, our review is for plain

error. Connelly, 351 F.3d at 545. "To obtain relief under this standard, the party
claiming error must show (1) an error, (2) that is plain (i.e., obvious and clear
under current law) (3) that is likely to alter the outcome, and (4) that is
sufficiently fundamental to threaten the fairness or integrity or public reputation
of the judicial process." Id. There was no plain error here.

43

1. Whether the district court erred in not using the "shock the conscience"
standard.

44

O'Neill argues that the trial court should have instructed the jury that the claim
against O'Neill for failure to intervene in the excessive use of force was
governed by the "shock the conscience" standard applicable to substantive due
process claims under the Fourteenth Amendment, not the "objectively
reasonable" standard applicable to Fourth Amendment claims.

45

O'Neill grounds this argument on the premise that he was "faced with splitsecond decisions ... when the circumstances [were] still developing" during the
course of an investigatory stop. O'Neill cites County of Sacramento v. Lewis,
523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), which held that the
death of a motorcyclist allegedly caused by a high-speed police chase was not
the result of a search or seizure under the Fourth Amendment, id. at 843, 118
S.Ct. 1708, and that "when unforeseen circumstances demand an officer's
instant judgment," a substantive due process violation under the Fourteenth
Amendment requires official action to shock the conscience, id. at 853-54, 118
S.Ct. 1708. The plaintiffs respond that Graham v. Connor, 490 U.S. 386, 109
S.Ct. 1865, 104 L.Ed.2d 443 (1989), made it clear that "all claims that law
enforcement officers have used excessive force deadly or not in the
course of an arrest, investigatory stop, or other `seizure' of a free citizen should
be analyzed under the Fourth Amendment and its `reasonableness' standard,
rather than under a `substantive due process' approach," id. at 395, 109 S.Ct.
1865 (second emphasis added).

46

Neither Lewis nor Graham dealt with a failure of one police officer to intervene
in the excessive use of force by another officer in his presence. A claim of
"failure to intervene" arises in a variety of factual circumstances and the phrase
by itself cannot determine either whether a duty arises or how claims of
violation of the duty are to be evaluated. In Martinez v. Colon, 54 F.3d 980 (1st
Cir.1995), this court discussed the fundamental distinction between the duty of
an officer to intervene when a private actor is inflicting the violence and the
officer's duty to intervene when another police officer (acting as a police
officer) inflicts the violence. Id. at 985-86. As DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249
(1989), held, "a State's failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause." Id. at 197,
109 S.Ct. 998. This is "because the purpose of the Due Process Clause is to
protect the people from the state, not to ensure that the state protects them from
each other." Rivera v. Rhode Island, 402 F.3d 27, 34 (1st Cir. 2005). As
Martinez explains, the DeShaney substantive due process rule6 does not apply
where it is an on-duty police officer acting under color of law whose violence
causes the injury. See Martinez, 54 F.3d at 985.

47

Even when the claim is that a state actor (not a private person) causes the
injury, that alone does not tell us enough to make dispositive judgments. There
are a variety of state actors and a variety of settings within which they act. A
police officer who is actively engaged in a search or seizure, as here, is subject
to the restrictions of the Fourth Amendment. Such an officer's actions are
evaluated differently than the conduct of a police supervisor who is not on the
scene and does not engage in the search or seizure but is later alleged to have
violated a duty to have trained the officers not to engage in violence which led
to another officer's violation of the injured person's rights. There are very
different, specific standards applied under the Fourteenth Amendment for such
supervisory liability claims, which are different from either the Fourth
Amendment or the DeShaney standards. We made this point in Wilson v. Town
of Mendon, 294 F.3d 1, 6 (1st Cir.2002). See also Camilo-Robles v. Hoyos, 151
F.3d 1, 6-7 (1st Cir.1998); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d
576, 581-82 (1st Cir.1994).

48

The claim here is a straightforward Fourth Amendment excessive force claim.

49

Where ... the excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly characterized as one
invoking the protections of the Fourth Amendment, which guarantees citizens
the right "to be secure in their persons... against unreasonable ... seizures" of the
person.

50

Graham, 490 U.S. at 394, 109 S.Ct. 1865.

51

At trial, the plaintiffs' case, under the rubric of "failure to intervene," was
predicated on two theories, each with support in the record.7 The jury
instructions given reflected these two alternate grounds for the "duty to
intervene": first, officers may have an affirmative duty to intervene arising from
being present at the scene, aware of the use of excessive force by another
officer, and able to stop it; and second, "[a] constitutional duty to intervene may
also arise if the onlooker officer is instrumental in assisting the actual attacker
or aggressor to place the victim in a vulnerable position." O'Neill's arguments
fail under both theories.

52

This first theory in the instructions expressed the classic paradigm of police
failure to stop the excessive use of force by a fellow officer, which we
addressed in Gaudreault v. Municipality of Salem, 923 F.2d 203 (1st Cir.1990).
The plaintiff there sued four police officers who did not actively participate in
another unidentified officer's assault on the plaintiff under detention. Id. at 207.

The court explained that "[a]n officer who is present at the scene and who fails
to take reasonable steps to protect the victim of another officer's excessive force
can be held liable under section 1983 for his nonfeasance." Id. at 207 n.3. No
liability for the non-participating bystander officers existed there because "the
attack came quickly and was over in a matter of seconds," giving the officers no
"`realistic opportunity' to prevent an attack." Id. (citing O'Neill v. Krzeminski,
839 F.2d 9, 11-12 (2d Cir.1988)).
53

O'Neill attempts to take advantage of Gaudreault by saying that he had no

opportunity to intervene. A jury, though, could and did find that O'Neill had
such an opportunity. Based on the evidence, the jury could find that O'Neill
was aware of Espada's earlier beating of Angel, and had sufficient time to
intervene then, before Espada assaulted Ernid. The jury could also find that the
entire episode of Espada's beating of Ernid lasted much longer than "a matter of
seconds," giving O'Neill, who was only ten feet away, both time and
opportunity to prevent or stop the beating.

54

More importantly, for present purposes, if there was no opportunity for the
non-participating officer to stop the excessive use of force, then O'Neill would
succeed on the excessive use of force claim. See id. But that would not convert
it from a Fourth Amendment claim to a Fourteenth Amendment claim. A fair
reading of the case law convinces us that O'Neill was not entitled to a "shock
the conscience" instruction for this first theory of his liability.

55

That conclusion is even clearer under the second theorythat O'Neill was a
participant and enabler of the attack. The joint participant basis for liability is
well established in the section 1983 case law. See Martinez, 54 F.3d at 985 n. 4
("A constitutional duty to intervene may also arise if onlooker officers are
instrumental in assisting the actual attacker to place the victim in a vulnerable
position. In such a scenario, the onlooker officers and the aggressor officer are
essentially joint tortfeasors and, therefore, may incur shared constitutional
responsibility." (citations omitted)). A "shock the conscience" instruction
would not be appropriate for this theory of joint participation.

56

The adequate opportunity to intervene instruction which O'Neill did receive is

less pertinent on this second theory, since the issue would not be his failure to
intervene, but his participation. See Wilson, 294 F.3d at 15 (explaining that joint
participation instruction depends on evidence of joint enterprise). As applied to
this second theory, the adequate opportunity to intervene is related to the
concept that officers must, under some circumstances, make judgments without
any time for reflection. That is the Graham instruction that "[t]he calculus of
reasonableness must embody allowance for the fact that police officers are

often forced to make split-second judgmentsin circumstances that are tense,

uncertain, and rapidly evolvingabout the amount of force that is necessary in
a particular situation." Graham, 490 U.S. at 396-97, 109 S.Ct. 1865. That
concept was also contained in the court's instructions. There was no error in
instructing the jury under a Fourth Amendment standard.
57

2. Whether the district court failed to instruct the jury on all the elements of the
failure to intervene claim and so failed to limit the damages award against
O'Neill.

58

O'Neill makes one last argument that, even in instructing in Fourth Amendment
terms, the court did not give the correct Fourth Amendment instruction and that
the error affected the damages award.

59

O'Neill argues that the district court erred, at least as to the first theory, in not
calling the jury's attention to what he calls the "temporal element of the
duration of the incident." See Davis v. Rennie, 264 F.3d 86, 97 (1st Cir.2001).
This, he argues, is pertinent to the damages award because O'Neill did not have
time to prevent Espada from his initial blow to Ernid's genital area, which
O'Neill contends is the largest component of the award of damages. Like the
previous challenge to the jury instructions, by failing to object at the required
time, O'Neill has not preserved his claim of error. On this point, there was no
error at all.

60

When a disappointed party "asks an appellate court to scrutinize a trial judge's

word choices, `the central inquiry reduces to whether, taking the charge as a
whole, the instructions adequately illuminate the law applicable to the
controlling issues in the case without unduly complicating matters or
misleading the jury.'" Elliott v. S.D. Warren Co., 134 F.3d 1, 6 (1st Cir. 1998)
(quoting United States v. DeStefano, 59 F.3d 1, 3 (1st Cir.1995)).

61

The trial judge's instructions, by stating that, in order to be held liable, O'Neill
must have a "realistic opportunity to prevent the other officer's actions" "from
the perspective of a reasonable officer on the scene," adequately took into
account the question of whether O'Neill had enough time to intervene. See
Davis, 264 F.3d at 97, 102 (discussing how the phrasing of "realistically"
intervene and "sufficient" time to intervene in the jury instructions focused the
jury's attention on whether attendant circumstances permitted intervention).

62

The trial judge did not abuse her discretion in determining that more
commentary on the time frame of the attack would have confused the issues in

this case and misled the jury. As the trial judge explained during the pre-charge
conference:
63

[T]here is, in this case, an issue on what was the time frame of the attacks, the
assaults, and for the Court to be making reference to things such as if the
assault occurred in a matter of seconds ... would bring a message to the jury
that the Court has made a ruling on liability as to whether this was over in a
matter of seconds.... That's for them to decide.

64

There was conflicting testimony as to how long the entire assault lasted and it
was for the jury to resolve that question of fact, decide whether and when
O'Neill could have realistically intervened during the episode, and determine
how much of the damages Ernid suffered should be attributed to O'Neill. The
trial judge's refusal to give an instruction was not abuse of discretion and, thus,
was not plain error.
C. Qualified Immunity

65

O'Neill argues that the trial court erred by denying him qualified immunity
from the failure to intervene claim. His chief argument is that in 1998, "the law
[was] not clearly established as to the application of a failure to intervene
standard in an open street investigatory detention scenario."

66

In this circuit, qualified immunity analysis is divided into three stages. See
Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60-61 (1st Cir.2004). The first
stage asks: "Taken in the light most favorable to the party asserting the injury,
do the facts alleged show the officer's conduct violated a constitutional right?"
Id. at 61 (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150
L.Ed.2d 272 (2001)). In the second stage, the question is "`whether the right
was clearly established at the time of the alleged violation' such that a
reasonable officer would `be on notice that [his] conduct [was] unlawful.'" Id.
(quoting Suboh v. Dist. Attorney's Office, 298 F.3d 81, 90 (1st Cir.2002)). And
in the last stage, the question is "whether a `reasonable officer, similarly
situated, would understand that the challenged conduct violated' the clearly
established right at issue." Id. (quoting Suboh, 298 F.3d at 90).

67

O'Neill focuses on the second step in the analysis, and he argues that in August
1998 there was no clearly established duty for officers to intervene in situations
of excessive use of force by other officers except those involving an actual
arrest or pretrial detention. See Davis, 264 F.3d at 113-14 (pre-1998 case law
"clearly established that a police officer has a duty to act when he sees another

officer using excessive force against an arrestee or pretrial detainee if the

officer could realistically prevent that force and had sufficient time to do so"
(emphasis added)).
68

This argument is simply wrong. Davis and the case law do not distinguish an
officer's duty to intervene during an "investigatory stop" from that during an
arrest or pre-trial detention. The Fourth Amendment duty applies here where
Ernid was seized. "A law enforcement officer has an affirmative duty to
intercede on the behalf of a citizen whose constitutional rights are being
violated in his presence by other officers." Krzeminski, 839 F.2d at 11
(emphasis added); see also Martinez, 54 F.3d at 985 (explaining that
Gaudreault "contemplates that the underlying tortious conduct take place
within the context of an arrest, interrogation, or similar maneuver" (emphasis
added)); Gaudreault, 923 F.2d at 207 n. 3. The Supreme Court found no
difference between an investigatory stop and an arrest or "other `seizure'" of the
person for purposes of the constitutional right to be free from the use of
excessive force under the Fourth Amendment. Graham, 490 U.S. at 395, 109
S.Ct. 1865.

69

In keeping with these principles, no reasonable officer would have concluded

that this stop was outside of these Fourth Amendment obligations. At least one
other circuit had determined by 1998 that an officer had an affirmative duty to
intervene to prevent the use of excessive force by another officer during an
investigatory stop. See Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir.1996); see
also Yang v. Hardin, 37 F.3d 282, 285 (7th Cir.1994) (officer may be held
liable for failing to intervene against another officer's use of excessive force
during the investigation of a crime scene). 8

70

Further, the alternate basis of joint participant liability in the failure to intervene
claim against O'Neill was clearly established in 1998. See, e.g., Martinez, 54
F.3d at 985 n. 4 ("In such a scenario, the onlooker officers and the aggressor
officer are essentially joint tortfeasors and, therefore, may incur shared
constitutional responsibility."); see generally Monroe v. Pape, 365 U.S. 167, 81
S.Ct. 473, 5 L.Ed.2d 492 (1961). O'Neill does not make any argument that this
theory of liability was unclear at the time of the beating. O'Neill is not entitled
to qualified immunity because the law was clearly established in 1998 that an
officer in O'Neill's circumstances had a duty to intervene.

71

D. The Jury Verdict for Torres-Rivera's Puerto Rico Law Negligence Claim.

72

O'Neill finally argues that the evidence was insufficient to justify the jury

verdict against O'Neill for negligence. Again, the arguments are without merit.

73

The general Puerto Rico tort law statute, Article 1802 of the Civil Code of
Puerto Rico, under which Torres-Rivera brought her claim, states: "A person
who by an act or omission causes damage to another through fault or
negligence shall be obliged to repair the damage so done. Concurrent
imprudence of the party aggrieved does not exempt from liability, but entails a
reduction of the indemnity." 31 P.R. Laws Ann. 5141.

74

O'Neill first argues that a jury was compelled to find that Torres-Rivera's own
actions in coming out of the house and asking "What happened?" were not
reasonable, and so O'Neill could not be liable for negligently harming her. The
reasonableness of Torres-Rivera's actions does not go to O'Neill's liability. As
Article 1802 makes clear, that is an argument to the jury that O'Neill's damages
be reduced, and not an argument as to liability.

75

O'Neill next contends that O'Neill did not "seize" Torres-Rivera by pointing the
gun at her. This is a non sequitur. Torres-Rivera's claim against O'Neill is not
that he negligently seized her, but that he negligently caused harm to her by his
actions.

76

O'Neill's final argument is that Torres-Rivera did not sufficiently prove her
damages. Torres-Rivera testified that she was traumatized by the incident and
the harm to her son Ernid, which she witnessed, and that she had to receive
medical treatment herself, leaving her sister to be in charge of Ernid. TorresRivera also had to receive psychological treatment as a result of the incident
and gave up her plans to become a police officer even though she already took
the first exams. There is sufficient evidence for the jury to conclude that
Torres-Rivera successfully proved her damages.

III.
77

The district court's judgment is affirmed. Costs are awarded to

plaintiffs/appellees.

Notes:
1

Dysuria is defined as "difficult or painful discharge of urine." Merriam

Webster's Collegiate Dictionary 361 (10th ed.)

Before trial, O'Neill sought summary judgment on the ground,inter alia, that he
was entitled to qualified immunity. The district court denied summary
judgment.

The jury also found that Espada violated Angel's Fourth Amendment rights by
using excessive force and awarded $100,000 in compensatory damages

Jury trial in this case was conducted on August 6-13, 2003. Rule 51 was
amended on March 27, 2003, to be effective December 1, 2003. Fed.R.Civ.P.
51 (2005 ed.). At the time of the trial, the pre-amendment version of the Rule
was in effect

The parties discussed the jury instructions with the court immediately before
the jury charge on August 12, 2003. During the discussion, O'Neill made
references to the effect that the district court had already ruled on some of his
objections at an earlier "informal charge conference" on August 11, and he
wanted to reiterate those objections "[b]riefly for the record." The court asked
O'Neill to state them specifically for the record. To the extent O'Neill wishes us
to consider the "informal charge conference" we cannot because no transcript
has been provided. In any event, he still failed to object post-charge and predeliberations

As we recognized inDavis v. Rennie, 264 F.3d 86 (1st Cir.2001), a "set of

unique rules has developed" for involuntarily committed mental patients. Id. at
98 (quoting Hasenfus v. LaJeunesse, 175 F.3d 68, 71 (1st Cir.1999)).

The parties were clearly aware of the two theories for liability. Prior to final
arguments, the court even discussed with the parties the possibility of an
instruction that O'Neill may be found to be jointly liable with Espada if O'Neill
"had a realistic opportunity to intervene and didn't ... and aided and abetted,
assisted the aggressor in harming him." The closing arguments also reflected
these two theories

O'Neill attempts to distinguish these cases on the ground that they do not
squarely hold that the Fourth Amendment (as opposed to the Fourteenth
Amendment) is what gives rise to the claim for failure to intervene. This
argument is a diversion at best. The cases clearly establish that a bystander
police officer had a duty to intervene in the excessive use of force by a fellow
officer during the course of an investigatory stop