United States Court of Appeals For the First Circuit

No. 18-2015

DAMARIS JUSTINIANO, as the personal representative of the Estate of Wilfredo Justiniano, Jr.,

Plaintiff, Appellant,

v.

STEPHEN V. WALKER; TIMOTHY P. ALBEN,

Defendants, Appellees.

No. 20-1063

DAMARIS JUSTINIANO, as the personal representative of the Estate of Wilfredo Justiniano, Jr.,

Plaintiff, Appellant,

v.

STEPHEN V. WALKER,

Defendant, Appellee,

TIMOTHY P. ALBEN,

Defendant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge] [Hon. Donald L. Cabell, U.S. Magistrate Judge] Before

Thompson, Selya, and Barron, Circuit Judges.

Jin-Ho King, with whom Ilyas J. Rona and Milligan Rona Duran & King LLC were on brief, for appellant. David J. Officer, with whom David J. Officer, P.C. was on brief, for appellee Stephen V. Walker. Joseph P. Lucia, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee Timothy P. Alben.

January 19, 2021 THOMPSON, Circuit Judge. The case we now confront

presents a sad and recurring scenario, one we see play out on the

national stage all too often. While the facts among these cases

may differ in varying degrees, the legal outcome is often the

same: enter stage right, the legal principles of supervisory

liability, failure to train, and yes, unsurprisingly, qualified

immunity,1 too.

On June 14, 2013, Massachusetts State Trooper Stephen

Walker ("Walker") pepper-sprayed, shot, and killed Wilfredo

Justiniano, Jr. on the side of a highway. Damaris Justiniano,2

Justiniano's sister and the personal representative of his estate,

brought a wrongful death and civil rights suit against both Walker

and the Superintendent of the Massachusetts State Police, Colonel

Timothy Alben ("Alben"), alleging that Walker used excessive force

against Justiniano in violation of his constitutional rights, and

that Alben should be brought to bear for that violation as well

via supervisory liability (specifically, failure to train). The

district court dismissed the claims against Alben for failure to

state a claim, and later, the magistrate judge granted summary

1 See Jamison v. McClendon,

, at *1-2 (S.D. Miss. Aug. 4, 2020) (collecting qualified immunity cases). 2 For ease of exposition, we will refer to Damaris Justiniano, as personal representative, and Wilfredo Justiniano, Jr. each as "Justiniano."

- 3 - judgment for Walker based on the qualified immunity doctrine.3

Justiniano appealed.

In the wake of the oral argument we heard on that appeal,

a new issue bubbled up: Justiniano's motion to vacate the summary-

judgment grant based on newly discovered evidence that, in

Justiniano's view, further supported the argument that summary

judgment for Walker was inappropriate and he was not entitled to

qualified immunity. The magistrate judge declined Justiniano's

invitation to set aside the judgment, and Justiniano appealed that,

too.

Having scoured the record and carefully reviewed the

issues in this consolidated appeal, we affirm each of the lower

court's judgments.

BACKGROUND

We start with the facts, which we present in the light

most favorable to Justiniano; as we do so, we draw all supportable

inferences in his favor. See, e.g., Rivera-Corraliza v. Morales,

(1st Cir. 2015) (citing Soto–Padró v. Pub. Bldgs.

Auth.,

(1st Cir. 2012)). We'll first recount the

3As a heads-up, note that the district court judge entered judgment on the motion to dismiss and the magistrate judge -- who, by agreement of the parties and in accordance with

(c) and Rule 73(b) of the Federal Rules of Civil Procedure, thereafter handled the case on his own -- entered judgment on the summary-judgment motion, as well as the subsequent motion to vacate that judgment.

- 4 - facts of the incident itself -- the unfortunate turn of events

that sparked this litigation in the first place -- before shifting

to all of the procedural history. As is usually the case in the

summary-judgment context, the parties dispute a number of facts,

particularly those regarding what happened after Walker

encountered Justiniano on the side of the highway. But what

brought Walker to the scene is undisputed, and that's where we

begin.

On that morning in June 2013, Justiniano, a forty-one-

year-old Hispanic man who had been diagnosed with paranoid

schizophrenia, was driving north on Route 28 near the Milton/Quincy

line in Massachusetts. A driver behind him, Karen Kyriakides

("Kyriakides"), noticed that he was driving erratically. When

Justiniano pulled over, Kyriakides (a good Samaritan indeed)

stopped as well and, concerned about Justiniano's well-being, went

over to his car to check on him. Noticing that Justiniano was out

of sorts -- confused, distraught, and not speaking intelligibly -

- she returned to her car and called 911. The record does not

include a transcript of the 911 call, but Kyriakides remembers

telling the dispatcher a man "needed help" but she "didn't know

what was going on with [him], so they needed to come out and see

what was going on." Kyriakides indicated that, because of

Justiniano's erratic behavior, she was scared for Justiniano,

herself, and anyone else driving by.

- 5 - Meanwhile, at the nearby state police barracks in

Milton, Walker's 7:00 a.m. day shift was getting underway when

Kyriakides' 911 call came in. The desk officer who took the call

told Walker about "a possible medical emergency" on Route 28;

around 8:00 a.m., Walker set out for the scene. When Walker

arrived, he saw Justiniano standing near his car. Walker radioed

for backup, then parked behind Justiniano's car and left his

emergency lights flashing before exiting his vehicle to see what

was going on.

The details of what followed are hotly contested.

According to Walker, Justiniano told Walker that he

(Justiniano) was an undercover cop and Walker was going to have to

kill Justiniano.4 Justiniano, moving toward Walker, next told

Walker that if Walker didn't kill him (Justiniano), he would kill

Walker -- and he repeated this throughout the encounter. At

various points during their standoff, Walker attempted to calm

Justiniano down verbally and through gestures. Three civilian

witnesses on or near the scene -- Kyriakides, Jo-Ann Silva-Winbush,

and Shannon MacKeen -- testified that they saw Walker using hand

gestures meant to stop Justiniano from moving towards Walker and/or

to calm Justiniano down; none of the witnesses indicated that

Justiniano complied. Throughout this part of their encounter,

4 None of the other witnesses could hear what was being said by Justiniano or Walker.

- 6 - Walker and Justiniano stood about fourteen to twenty feet apart

from one another. Walker says Justiniano, while approaching

Walker, was holding a ballpoint pen much like someone would hold

a knife, still talking about killing Walker.5 In response, Walker

began to retreat -- Kyriakides testified she saw Walker taking

steps backward toward the highway; Silva-Winbush said Walker

"jumped in front of her car" so she came to a stop, then watched

him back up into the road further. Walker also told Justiniano to

stop advancing toward him. Silva-Winbush explained that

Justiniano was "coming after" or "lunging for" Walker at this

point, and Walker "put his hand up" to indicate "stop" and "[s]tay

there" to Justiniano with his hand palm-out towards Justiniano.

Kyriakides testified that she saw Justiniano "getting closer to

the trooper," and "look[ing] like he was ready to jump on [Walker]"

and, eventually, "lung[ing]" at him.

Asserting that "it was immediately apparent that

Wilfredo Justiniano was having a mental health crisis," Justiniano

urges a different version of these events, disputing in particular

that Justiniano was holding a pen and threatening to kill Walker.

Specifically, Justiniano highlights that Silva-Winbush and MacKeen

stated they could not see anything in Justiniano's hands, while

Kyriakides said she noticed Justiniano placed an object (she didn't

5 No other witness testified to seeing Justiniano holding a pen (though a pen was found at the scene).

- 7 - see what it was) on the ground before Walker arrived, and, when he

moved towards Walker, it was with his arms out and palms open. As

for the threats Walker said Justiniano made, Justiniano asserts

that the idea that Justiniano was uttering comprehensible

communications does not jibe with Kyriakides' testimony that, when

she spoke with Justiniano moments before Walker's arrival, he was

not speaking an intelligible language.

In any event, whether Justiniano was unarmed and

speaking incoherently, or wielding a pen like a knife and

threatening Walker, it is undisputed that Justiniano kept moving

forward (though the nature of this precise movement is very

debated, as we'll discuss later), so Walker, keeping a distance of

about fourteen feet between them, next resorted to his pepper

spray, spraying Justiniano twice in the face. Kyriakides explained

that Walker appeared to spray Justiniano after Justiniano lunged

at him, but she didn't actually see either spraying take place.

Silva-Winbush, however, did see Walker spray Justiniano, and

observed that neither spraying seemed to "bother [Justiniano],"

who "shook it off."

According to Walker, the wind blew some of the second

spray back into Walker's eyes, compromising his vision. After

being sprayed that second time, Justiniano moved towards Walker

and closed the distance between them. Kyriakides testified that

Justiniano was "charg[ing] at" Walker, and Silva-Winbush testified

- 8 - that Justiniano "came after" Walker at that point, "really mad"

and "ready to fight," despite Walker again holding up his hand,

gesturing for Justiniano to stop, and continuing to back up into

the highway.

As best we can tell from the excerpts of her deposition

in the record, MacKeen was driving by the scene around this time,

"stopp[ing] a little bit when [she] realized what was going on."

She noted seeing Walker's hand on his gun and Justiniano dipping

his shoulder, leading to Walker "pull[ing] the weapon" -- the

weapon being his gun, which she saw, before driving away; then she

heard the shot. She explained that, while they'd been "basically

stationary" when she first saw Walker and Justiniano, Justiniano

was swaying and pacing before taking some steps towards Walker,

then dipping his shoulder down "like he might attack" Walker.

MacKeen also indicated that Walker had put his hands in front of

him, gesturing "to make [Justiniano] stand down, stop moving[,]"

and Walker took "one big step back" before Justiniano had dipped

his shoulder. At no point does MacKeen mention pepper spray.

When Justiniano was about four to seven feet away from

Walker, Walker unholstered his firearm and fired two shots from

his hip. One shot hit Justiniano in his left forearm, the other

in his chest. Walker says that Justiniano, after being shot, tried

to get up, so Walker pushed him back to the ground with his foot.

A backup officer, (Joseph Durning) arrived, and he and Walker

- 9 - struggled to handcuff Justiniano; Durning, concerned Justiniano

might have a weapon, pepper-sprayed Justiniano. Eventually,

Walker, Durning, other officers, and firefighters were able to

subdue and handcuff Justiniano, who was then placed on a stretcher.

From there, he was transported to Milton Hospital, where he was

later pronounced dead.

On April 14, 2015, Justiniano filed suit against Walker

and Alben in the United States District Court for the District of

Massachusetts.6 Relevant to this appeal, under

,

the complaint alleged that Walker's actions violated Justiniano's

right to be free from excessive force (Count 1), and that Alben,

as Walker's supervisor, was deliberately indifferent in failing to

train Massachusetts State Troopers on how to interact with mentally

ill individuals (thus, he alleged, putting Alben on the liability

hook for Walker's actions) (Count 3).7 More on the details of

6 The complaint alleged four counts, but, on appeal, Justiniano is pursuing the dismissal of Counts 1 and 3 only. The curious reader can note that the counts not being chased down in today's appeal were wrongful death claims against Walker (Count 2) and Alben (Count 4). 7 Quick pause to observe that both the complaint and summary- judgment phase focused on the shooting as the excessive force, but in the motion to vacate (which we'll discuss in a bit) and now before us on appeal, Justiniano switched gears and advances the first use of the pepper spray as the excessive force. It's unclear why. Because of the analytical route we'll be taking on our way to resolving this case, we can assume (without deciding) that this switch-up does not constitute waiver. Thus it is not necessary for us to comment or consider this further.

- 10 - these allegations down the line.

As we already previewed, these claims were dismissed,

albeit at different stages of the litigation timeline. First, on

September 22, 2016, the district court, adopting a magistrate

judge's report and recommendation ("R&R") over Justiniano's

objection, dismissed the claim against Alben -- regardless of

whether Walker's actions may have violated Justiniano's rights --

because Justiniano had not plausibly alleged deliberate

indifference or causation.

The claims against Walker cleared the pleadings-stage

hurdle, but stumbled when Walker moved for summary judgment on the

ground that he acted reasonably and, regardless, was entitled to

qualified immunity. Indeed, in September 2018, the magistrate

judge entered an order granting summary judgment in favor of Walker

on the ground that his actions were not a constitutional violation

as a matter of law. Taking a belt-and-suspenders approach, the

magistrate judge went on to say that even if Walker had committed

a constitutional violation, summary judgment still was proper

because he would be entitled to qualified immunity. Justiniano

appealed both dispositions of his case.

That appeal was argued before this panel in July 2019.

Soon thereafter, in late September, a new dimension to the case

developed when, in connection with a separate but related matter

pending in Massachusetts state court, Justiniano discovered new

- 11 - evidence (specifically, evidence from Walker's personnel file that

Justiniano says demonstrates Walker's propensity to be untruthful

when disciplinary action arising from his incidents of misconduct

is on the line -- more detail to follow) that prompted Justiniano

to ask the magistrate judge to vacate the dismissal of the case

against Walker.8 The magistrate judge denied the motion,

explaining that Justiniano could (and should) have obtained the

at-issue evidence in the first instance by exercising the due

diligence required under Rule 60(b)(2) of the Federal Rules of

Civil Procedure; but even if that was not so, the new evidence

still would not have changed the magistrate judge's take on the

motion for summary judgment. Justiniano again appealed. That

appeal, consolidated with the original appeal, was argued to us on

September 10, 2020.

This brings us up to date, up to speed, and ready to

tackle our analysis.

8 Actually, the procedural history is a touch more labored: Justiniano moved pursuant to Rule 60 of the Federal Rules of Civil Procedure to have the magistrate judge set aside the judgment based on the newly discovered evidence, and the magistrate judge denied that motion for lack of jurisdiction. That ruling was appealed and ultimately vacated by an order of this court instructing that the Rule 60 motion be construed as a motion under Rule 62.1 instead. See Fed. R. Civ. P. 62.1(a) (directing that, "[i]f a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may" do one of these things: "(1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue").

- 12 - DISCUSSION

We begin making our way through the issues presented by

reviewing the dismissal of the claim against Alben, then we'll

pivot to our discussion of the interwoven questions centering on

the denial of Justiniano's motion to vacate and the summary

disposition of the claim against Walker.

A. Alben and the Motion to Dismiss

As always, "we give de novo review to a Rule 12(b)(6)

failure to state a claim dismissal, using the same criteria as the

district judge." Zell v. Ricci,

(1st Cir. 2020)

(alterations omitted) (citations omitted). Recall, too, that "we

take as true the allegations of the complaint, as well as any

inferences we can draw from them in [Justiniano]'s favor."

(citing Ocasio–Hernández v. Fortuño–Burset,

(1st

Cir. 2011)). As we assess the adequacy of a complaint, we are

mindful that

our circuit has instructed that the review should be handled like this: first, "isolate and ignore statements in the complaint that simply offer legal labels and conclusions or merely rehash cause-of-action elements[,]" then "take the complaint's well-pled (i.e., non-conclusory, non-speculative) facts as true, drawing all reasonable inferences in the pleader's favor, and see if they plausibly narrate a claim for relief."

(quoting Zenon v. Guzman,

, 615–16 (1st Cir.

2019)); see also Schatz v. Republican State Leadership Comm.,

(1st Cir. 2012) (discussing, among other cases,

- 13 - Ashcroft v. Iqbal,

(2009), and Bell Atl. Corp. v.

Twombly,

(2007)). "Plausible, of course, means

something more than merely possible, and gauging a pleaded

situation's plausibility is a context-specific job that compels us

to draw on our judicial experience and common sense." Zell,

(internal quotations omitted) (quoting Schatz,

). The plausibility standard is not a "probability

requirement," but instead "asks for more than a sheer possibility

that a defendant has acted unlawfully," Iqbal,

--

so if we can't infer from the well-pleaded facts "more than the

mere possibility of misconduct,"

, then the complaint

has not shown "that the pleader is entitled to relief,"

(quoting Fed. R. Civ. P. 8(a)(2)).

We start off by noting that Alben argued -- to the

district court and before us -- a qualified immunity defense.

However, we will not dive head first into that argument because,

even if we were to assume that he was not entitled to such immunity,

we would still affirm the dismissal of the count against him. See

Camilo-Robles v. Hoyos,

(1st Cir. 1998) (advising

courts to separate the "qualified immunity" analysis from the

"merits" supervisory liability analysis "whenever practicable"

because each inquiry is "distinct").

At the heart of the Alben motion-to-dismiss issue then

is whether the complaint's Count 3 plausibly alleged not only that

- 14 - Alben's failure to implement training to teach troopers how to

deal with mentally ill individuals caused a violation of

Justiniano's constitutional rights, but also that Alben was

deliberately indifferent to the risk that not providing that

training would result in a trooper committing that kind of

constitutional violation. Justiniano, of course, says the

complaint accomplished all of this, while Alben takes the opposite

stance. Before we get into those arguments, let's first canvass

these legal principles (deliberate indifference, causation in

failure-to-train cases) -- they're the backdrop against which

we'll assess the complaint's sufficiency, after all.

Alben was not on the scene, of course, so Justiniano

relies on supervisory liability and a failure-to-train theory to

put him on the hook. We've cautioned that "[t]he liability

criteria for 'failure to train' claims are exceptionally

stringent." Hayden v. Grayson,

(1st Cir. 1998)

(citations omitted). Generally, a supervisor cannot be held liable

under § 1983 on a respondeat superior theory -- a "supervisor's

liability must be premised on his [or her] own acts or omissions"

and does not attach automatically even if a subordinate is found

liable. Guadalupe-Báez v. Pesquera,

(1st Cir.

2016). To connect the liability dots successfully between

supervisor and subordinate in this context, a plaintiff must show

"that one of the supervisor's subordinates abridged the

- 15 - plaintiff's constitutional rights" and that the supervisor's

(in)action "was affirmative[ly] link[ed] to that behavior in the

sense that it could be characterized as . . . gross negligence

amounting to deliberate indifference."9

(alterations

omitted) (first citing then quoting Pineda v. Toomey,

(1st Cir. 2008)). And that's a critical issue here --

deliberate indifference. Deliberate indifference requires a

plaintiff to demonstrate or allege "(1) a grave risk of harm, (2)

the defendant's actual or constructive knowledge of that risk, and

(3) his failure to take easily available measures to address the

risk." Camilo-Robles,

; see also Guadalupe-Báez,

. Indeed, "[m]ere negligence will not suffice: the

supervisor's conduct must evince 'reckless or callous indifference

9 A brief aside: as will become apparent, because we can resolve the appellate contentions on other requisite components of the global legal claims advanced by Justiniano, we really don't need to determine whether Walker's conduct constituted a violation of Justiniano's constitutional rights. This is true later, too, when we tackle the Walker-summary-judgment issue. We take this approach not only because when "it is not necessary to decide more, it is necessary not to decide more," Belsito Commc'ns, Inc. v. Decker,

(1st Cir. 2016) (quoting PDK Labs., Inc. v. Drug Enf't Admin.,

(D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment)), but also because of the added wrinkle that the constitutional violation pled in the complaint (the shooting) differs from the constitutional violation argued in the Walker issue on appeal (the pepper-spraying). At any rate, in this section of analysis, as we're about to explain, we can do away with the arguments based on failure to plausibly plead deliberate indifference and causation, so we can assume (certainly without deciding) a constitutional violation transpired.

- 16 - to the constitutional rights of others.'" Guadalupe-Báez,

(quoting Febus-Rodríguez v. Betancourt-Lebrón,

(1st Cir. 1994)).

And there's more. "[D]eliberate indifference alone does

not equate with supervisory liability,"

(quoting Figueroa–

Torres v. Toledo–Dávila,

(1st Cir. 2000)

(alteration in original)), but rather "[c]ausation [is also] an

essential element, and the causal link between a supervisor's

conduct and the constitutional violation must be solid,"

(citation omitted). For causation in a failure-to-train claim, a

plaintiff must allege that the "lack of training caused [the

officer] to take actions that were objectively unreasonable and

constituted excessive force." Young v. City of Providence ex rel.

Napolitano,

(1st Cir. 2005). And the causation

requirement "contemplates proof that the supervisor's conduct led

inexorably to the constitutional violation." Guadalupe-Báez,

(quoting Hegarty v. Somerset Cty.,

(1st Cir. 1995)). We've observed this "is a difficult standard to

meet," though not impossible -- for instance, a plaintiff could

"prove causation by showing inaction in the face of a 'known

history of widespread abuse sufficient to alert a supervisor to

ongoing violations.'"

(quoting Maldonado–Denis v. Castillo–

Rodríguez,

(1st Cir. 1994)). Alternatively,

liability might be appropriate "'in a narrow range of

- 17 - circumstances' where 'a violation . . .' is 'a highly predictable

consequence of a failure to equip law enforcement officers with

specific tools to handle recurring situations.'" Young,

(quoting Bd. Of Cty. Comm'rs. of Bryan Cty., Okla. v. Brown,

(1997)).

So that's what needed to be alleged here -- deliberate

indifference and causation that fit these black-letter-law bills.

True, "[c]ausation and deliberate indifference are separate

requirements . . . [, but] they are often intertwined in these

cases." Id. at 26. So it is here -- both determinations turn on

whether Alben was aware of a risk that his subordinates (Walker,

in particular) might violate mentally ill individuals'

constitutional rights.

Justiniano says the complaint does plenty to state this

claim plausibly, and thus it should have survived the Rule 12(b)(6)

motion. Count 3 alleges that Alben, as Walker's supervisor and a

policymaker, failed to provide Walker with the proper training and

resources that would have helped to prevent a violation of

Justiniano's constitutional rights (again, the complaint leans on

the lethal force as the violation). Justiniano argues that the

complaint adequately alleges that Alben was aware of and ignored

national trends indicating a problematic rise in bad-outcome

encounters between police and mentally ill individuals but

provided no specialized training, and that failure to train

- 18 - constituted deliberate indifference to an obvious risk. And,

according to Justiniano, the complaint plausibly lays out the

requisite causal nexus by alleging that the sought-after de-

escalation training would have prevented this tragedy, meaning

Walker's lack of training by Alben was the cause of the violation

of Justiniano's rights.

Alben disagrees, asserting that the complaint falls

short of alleging facts sufficient to establish that he acted with

deliberate indifference to Justiniano's constitutional rights (or,

put differently, that Alben had notice of conduct violating

constitutional rights but failed to take steps to address it),

and, on top of that, the complaint does not adequately allege that

proper training would have prevented that violation (i.e., no

causation).

With the benefit of every possible doubt -- accepting

all of the complaint's factual allegations as true, Zell,

, assuming that a constitutional violation occurred, drawing

all reasonable inferences in Justiniano's favor, and "isolat[ing]

and ignor[ing]" mere legal conclusions -- this claim's "non-

conclusory, non-speculative" factual allegations do not "plausibly

narrate a claim for relief,"

(quoting Zenon, 924 F.3d at 615–

16), so Justiniano's Count 3 as pled does not pass muster.

In broad strokes, as to the alleged facts that arguably

could support the supervisory liability theory, this is what the

- 19 - complaint does accomplish: that Alben, as supervisor, did not

have specific policies in place "for dealing with mental health

crises without using lethal force" or "for troopers dealing with

mental health crises on techniques to de-escalate"; that Alben was

aware of national trends showing an increase in the number of

mental health crises and a corresponding increase in the number of

death-resulting encounters with police which have prompted some

law enforcement entities to institute training regarding these

issues, but Alben took no "affirmative action," which may have

contributed to Justiniano's death. It then asserts that Alben's

failure to act in the face of these national trends "demonstrates

a deliberate indifference" to Justiniano's civil rights, and,

"[a]s a direct result of" Alben's conduct, Justiniano died.

It is not difficult to see what Justiniano was trying to

do here. But these alleged facts don't support the essential legal

elements of "reckless or callous indifference to the

constitutional rights of others," Guadalupe-Báez,

(quoting Febus-Rodríguez,

), and the "solid" "causal

link between [Alben]'s conduct and the constitutional violation,"

(citation omitted), that Justiniano needed to state in order

to be entitled to relief as a matter of law.

Starting with deliberate indifference, it's clear

Justiniano's aim was to highlight the absence of training when it

comes to police encounters with the mentally ill -- Alben himself

- 20 - acknowledged that shortcoming in the system, as the complaint

alleges -- and to try to link that to wrongdoing by Alben. But

there are too many pieces missing, even with the benefit of some

inferential leaps, for us to conclude deliberate indifference has

been plausibly pled.

For instance, there are no non-speculative facts in the

complaint that allege a specific "grave risk of harm" in failing

to train or that there were "easily available measures to address

the risk" that Alben could have taken but didn't. Camilo-Robles,

; see also Guadalupe-Báez,

. There is

no allegation that the referenced mental health training adopted

by some other jurisdictions would have been easy to implement in

Massachusetts, nor that the trainings actually have been effective

in reducing the frequency of constitutional violations of the

mentally ill. See, e.g., Rodriques v. Furtado,

(1st Cir. 1991) (explaining that arguable weaknesses with respect

to police training or supervision don't necessarily equate to

deliberate-indifference failure to train). And even if there were

such allegations, it still would not be enough to suggest plausibly

that Alben knew or should have known his troopers might violate

the rights of a mentally ill individual, particularly when there

is no known history of such constitutional trampling by

Massachusetts troopers alleged. The complaint does not plead that

Walker or the Massachusetts State Police more generally had a

- 21 - history of using excessive and constitutionally violative force

against individuals who were mentally ill such that Alben should

have been on notice of that conduct, nor is there any suggestion

that the Massachusetts State Police are otherwise specifically at

risk of violating a mentally ill individual's constitutional

rights. See Guadalupe-Báez,

. Clearly, then, he

could not have ignored -- with deliberate indifference or otherwise

-- a non-existent history of these issues.10

Another angle would be to consider whether the complaint

plausibly alleged a national trend of constitutional violations so

prominent that Alben should have been (or was) on notice of a high

10 On the deliberate indifference/notice front, by comparison, consider the facts and outcome in Guadalupe-Báez: a man was shot, and although he was not able to identify his shooter, he had reason to believe it was a local police officer.

. The supervisory failure alleged there centered on a lackluster police investigation into the matter.

. In concluding the plaintiff barely met the pleading standard, a panel of this court put emphasis on the particular police force's "tarnished history" of civil rights violations and a Department of Justice report calling out that specific police force's issues.

. And then there's Young, in which a friendly-fire incident saw on-duty uniformed officers shoot an off-duty officer who was responding to the same incident.

. The Young court found supervisory liability despite the absence of a history of past violations because the police department's policy required off-duty officers to remain armed and respond to situations they encountered.

Because officials made statements suggesting they were aware of a high risk of a friendly-fire incident in these circumstances, and because the police force's training did not necessarily prepare on-duty officers for the inherently dangerous possibility of an armed and responding off-duty officer, the court explained that a jury could have found the officers to have been deliberately indifferent to a risk of this shooting.

at 18- 19, 28.

- 22 - risk that, without this training, there was a grave risk that his

troopers would violate a mentally ill person's constitutional

rights, and he nonetheless ignored it. See Young,

.

But the complaint does not allege such a widespread, prominent

trend of constitutional violations: in fact, the complaint does

not actually allege that the "trend" involves constitutional

violations at all, but instead states that there are more and more

"tragic encounters with police where unarmed mentally ill citizens

end up dead." While we do not purport to foreclose the possibility

that such a national trend might be enough to provide this notice,

the trend as alleged here simply does not rise to that level.

And the requisite causal link has not been plausibly

alleged either, i.e., that Alben's failure to train his troopers

"caused [Walker] to take actions that were objectively

unreasonable and constituted excessive force." Young,

. Justiniano pleads that "[a]s a direct result of the conduct

of Defendant Alben, Wilfredo Justiniano lost his life," but none

of the pled conduct supports that legal conclusion. And while the

complaint alleges that Walker acted improperly in light of

Justiniano's mental condition, there is no allegation that

Walker's decision to shoot Justiniano was related to any mental

illness that Justiniano suffered. Yes, the complaint alleges that

Walker confronted, fired his gun at, and ultimately killed

Justiniano, who was unarmed and experiencing a mental health

- 23 - crisis, but, even if all of that was proven, there still could be

no non-speculative inference from those facts that, had Alben

provided the training, the shooting would not have happened.

Recall, too, that we've said a plaintiff could "prove

causation [in this context] by showing inaction in the face of a

'known history of widespread abuse sufficient to alert a supervisor

to ongoing violations,'" Guadalupe-Báez,

(quoting

Maldonado–Denis,

), and it could be alleged by

pleading that certain conduct "is 'a highly predictable

consequence of a failure to equip law enforcement officers with

specific tools to handle recurring situations,'" Young,

(quoting Brown,

). This is a non-exhaustive

set of examples, certainly, but nothing even approaching these

scenarios happened here (as we touched on in part in our deliberate

indifference discussion). Instead, the complaint conclusorily

alleges that Alben's refusal to change the relevant policies led

to the "inevitable outcome" of Justiniano's death, but does nothing

to allege non-speculative facts that would allow an inference that

training actually would have altered that outcome.

All told, we needed "more than a sheer possibility that

[Alben] . . . acted unlawfully[,]" but we didn't get it. Iqbal,

. There's not enough factually alleged here to

support a conclusion that Alben acted with deliberate indifference

when he neglected to train Walker (and other troopers) on how to

- 24 - interact with the mentally ill; and, regardless of that

shortcoming, there's still a dearth of factual allegations to

bolster the conclusion that his failure to do so caused Walker to

violate Justiniano's rights. Therefore, we affirm the district

court's dismissal of the claim against Alben.

B. Walker and the Motion for Summary Judgment

We thus move on, turning our gaze to the summary judgment

granted to Walker and ensuing new-evidence litigation. Here's how

that will go: we'll first explain everything that happened below

-- the summary-judgment grant as to Count 1 followed by the denial

of the motion to vacate -- then lay out the rules of engagement

for qualified-immunity arguments before turning to the parties'

appellate contentions, all of which we'll assess under de novo

review because, as we'll explain, even if we look at all the

evidence (both old and new), a de novo review of the entire matter

still leads to an affirmance based on qualified immunity. Let's

begin.

i. Proceedings Below

Starting with Walker's motion for summary judgment,

here's the gist of how this issue went below.

Walker moved for summary judgment on the ground that he

did not violate Justiniano's rights and, in any event, was entitled

to qualified immunity. In opposition, Justiniano argued there

were genuine issues of material fact (focusing in particular on

- 25 - whether Justiniano was wielding a weapon (the pen); what, exactly,

was said between Walker and Justiniano; and, overall, whether

Walker could have reasonably felt threatened) and that qualified

immunity should not attach because Walker's conduct constituted an

unconstitutional and unreasonable use of excessive force that

violated a protected right that was clearly established at the

time, especially given that Justiniano "posed no imminent threat."

In fielding that motion, the magistrate judge considered the

evidence, including evidence from civilian witnesses and evidence

from Walker that Justiniano was brandishing a ballpoint pen as a

weapon and made threatening statements to Walker.11 Justiniano v.

Walker,

, at *2-3 (D. Mass. Sept. 30, 2018). In

finding that, based on the entire record, Walker acted reasonably

under the circumstances, the magistrate judge concluded that

Walker therefore did not use excessive force. Id. at *5. And,

moreover, even if Walker's conduct had constituted excessive

force, the magistrate judge indicated that Walker would be

protected by the cover of qualified immunity because "a reasonable

officer would not have clearly understood Trooper Walker's conduct

to be unreasonable" since Justiniano "posed an imminent threat" -

- indeed, that reasonable officer "would not have readily

11 Recall from our earlier factual recitation that no witness could hear anything being said by either Justiniano or Walker, nor could any witness confirm that Justiniano was holding a pen in this manner (though a pen was found on the road after the fact).

- 26 - understood Trooper Walker's actions to violate Justiniano's

rights." Id. at *6. The court accordingly granted the motion for

summary judgment. Id.

As discussed, that ruling was appealed, and while the

appeal was pending, the new-evidence issue materialized. Here's

what the new evidence was and how it came to light. In the parallel

litigation taking place in the Massachusetts state court,

Justiniano's motion to compel production of certain documents

(which had been requested but not been produced in the federal

case) was granted, providing access to some of Walker's personnel

file, including disciplinary reports regarding Walker, training

reports, and some emails. Justiniano v. Walker,

,

at *1-2, *4 (D. Mass. Dec. 24, 2019). Justiniano says this

evidence matters because it demonstrates Walker's history of lying

while under investigation in two prior misconduct matters, that he

(a) violated department policy when he failed to create a use of

force report within the required 24-hour period after Justiniano's

shooting, and (b) lied under oath in his deposition in this matter

when he represented that he had written the report when, according

to the State Police producing the compelled documents, no such

report could be found.12 In view of this new evidence showing

12 Obviously, to the extent this was indeed a lie under oath as Justiniano asserts, we do not condone perjury. But, as we'll explain, we do not need to get into whether that is what happened.

- 27 - (according to Justiniano) that Walker has a spotty history when it

comes to truth-telling, Justiniano argued the summary-judgment

grant should be vacated because Walker's uncorroborated statements

regarding the incident with Justiniano are no longer credible,

meaning there are genuine issues of material fact as to whether

the incident transpired as Walker indicated and thus, whether he

acted reasonably when he pepper-sprayed Justiniano.

Back before the lower court after our remand, the

magistrate judge first concluded that, in view of our due-diligence

Rule 60 caselaw, Justiniano should have done more to obtain this

evidence in the instant litigation, i.e., pursue an order

compelling production. Id. at *5-6. Then, in an exercise of even-

if thoroughness, the magistrate judge went on to assume arguendo

that, had the due-diligence hurdle been surmounted, the relief

Justiniano sought (vacating the summary-judgment grant) still

would not be granted because the new evidence wouldn't change the

outcome: even removing Walker's uncorroborated statements from

consideration, Walker was nonetheless entitled to qualified

immunity. Id. at *6-7. The magistrate judge assessed the

qualified-immunity issue -- minus Walker's statements -- and

concluded that, on this record, Walker had not acted unreasonably:

an objectively reasonable officer in Trooper Walker's position would not have understood that emitting a burst of pepper spray to retard Justiniano's movements violated his rights. On the contrary, the undisputed facts demonstrate that Justiniano appeared agitated and

- 28 - distraught when Trooper Walker arrived, Trooper Walker tried to calm him down by holding up his hands, Justiniano did not comply, and Trooper Walker used the pepper spray only after he was forced to back up into [the highway].

Id. at *7.13

ii. Ground Rules: Qualified-Immunity Law

We need not grapple with the front-end issue of whether

the new evidence should have been discovered in this action with

the exercise of due diligence because, even if it had been, its

existence in this record does not alter the outcome: Walker is

still protected by qualified immunity. We thus proceed under the

assumption that the new evidence can be considered, meaning we

take Walker's uncorroborated statements off the evidentiary table

as we analyze the qualified-immunity question here.

We begin with a primer on the standard of review, the

qualified-immunity test, and the guidance our caselaw provides.

We review a grant of summary judgment de novo, drawing

all reasonable inferences in the light most favorable to the

nonmoving party. Mitchell v. Miller,

(1st Cir.

2015) (citing Alicea v. Machete Music,

(1st Cir.

2014)). Our caselaw and Rule 56 of the Federal Rules of Civil

Procedure teach us to affirm the grant of summary judgment only if

13 Recall that, as we mentioned a few pages back, Justiniano's appellate focus is on the pepper spraying only, not the lethal force.

- 29 - "there is no genuine dispute as to any material fact" and, as a

result, the moving party is "entitled to judgment as a matter of

law."

at 76-77 (quoting Bos. Prop. Exch. Transfer Co. v.

Iantosca,

(1st Cir. 2013)); see also Fed. R. Civ.

P. 56(a). Importantly, to avoid "the swing of the summary judgment

scythe," the nonmoving party must adduce specific facts showing

that a trier of fact could reasonably find in his favor, Mulvihill

v. Top-Flite Golf Co.,

(1st Cir. 2003), the

nonmovant cannot rely on "conclusory allegations, improbable

inferences, and unsupported speculation," Medina-Muñoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990).

This lens of review in place, we turn to qualified

immunity -- much referenced thus far, but not yet subject to a

deep-dive, so in we go. "Qualified immunity protects an officer

from suit when a reasonable decision in the line of duty ends up

being a bad guess -- in other words, it shields from liability

'all but the plainly incompetent or those who knowingly violate

the law.'" Decker,

(quoting Taylor v. Barkes,

(2015)). "'[R]easonable mistakes,' the Supreme Court

tells us, 'can be made as to the legal constraints' on officers,

and when that happens, the officer is qualifiedly immune from

damages."

(alteration in original) (quoting Saucier v. Katz,

, 205 (2001), overruled on other grounds by Pearson v.

Callahan,

(2009)). Here, to quash Walker's qualified-

- 30 - immunity defense, Justiniano needed to "show (1) that [Walker]

infracted [Justiniano's] federal rights and (2) that these rights

were so clearly established that a reasonable officer should have

known how they applied to the situation at hand."

at 23

(citing City & Cnty. of S.F. v. Sheehan,

(2015);

Pearson,

; Cortés-Reyes v. Salas-Quintana,

(1st Cir. 2010)). In fact, we routinely break the second

prong down even more explicitly as follows: "'whether the right

was clearly established at the time of the alleged violation,' and

'whether a reasonable officer, similarly situated, would

understand that the challenged conduct violated that established

right.'" Parker v. Gerrish,

(1st Cir. 2008)

(quoting Philip v. Cronin,

(1st Cir. 2008)

(reasoning that, even if a constitutional right has been clearly

established, a defendant may nonetheless be protected by qualified

immunity if a reasonable official in the defendant's position could

have believed (even wrongly) that the at-issue conduct was not

violative of a constitutional right)); see also Savard v. Rhode

Island,

(1st Cir. 2003) (en banc) (referring to

the qualified-immunity test as a "three-part algorithm"). And

breaking the clearly-established element down in this way makes

good sense: "a defendant cannot be said to have violated a clearly

established right unless the right's contours were sufficiently

definite that any reasonable official in the defendant's shoes

- 31 - would have understood that he was violating it," Plumhoff v.

Rickard,

, 778–79 (2014), i.e., "'existing precedent

must have placed the statutory or constitutional question'

confronted by the official 'beyond debate,'"

at 779 (quoting

Ashcroft v. al–Kidd,

, 741 (2011)).

We can tackle these components of the qualified-immunity

test in any order we like. Pearson,

. Here, we'll

assume without deciding the first pieces have been shown --

Walker's use of the pepper spray violated Justiniano's right to be

free from that force, and that right was clearly established and

on the books in June 2013 -- and resolve the matter on the question

of whether a reasonable, similarly situated officer would

understand that Walker's conduct violated Justiniano's

constitutional right.14 See Parker,

. As we do

so, we keep in mind that, because "[c]ourts penalize officers for

violating bright lines, not for making bad guesses in gray areas,"

Rivera–Corraliza,

(internal quotation marks

omitted), if the pertinent "legal principles are clearly

established only at a level of generality so high that officials

cannot fairly anticipate the legal consequences of specific

14 Because we will dispose of the matter in this way, we need not get into the constitutionality of Walker's conduct. See Decker,

n.8 (taking a similar approach in a qualified immunity matter); Barton v. Clancy,

, 30 n.20 (1st Cir. 2011) (same). Remember, this is what we did in the Alben analysis, as well.

- 32 - actions, then the requisite notice is lacking," Savard,

.

We are also mindful that deciding qualified immunity at

the summary-judgment stage can be tricky. See Morelli v. Webster,

(1st Cir. 2009) (discussing the "inherent

tension" between qualified immunity and summary judgment). Yes,

"qualified immunity is 'an immunity from suit rather than a mere

defense to liability,'" meaning "'it is effectively lost if a case

is erroneously permitted to go to trial,'" Pearson,

(quoting Mitchell v. Forsyth,

(1985)), so

qualified immunity's applicability "should be resolved at the

earliest possible stage of litigation," Rocket Learning, Inc. v.

Rivera-Sánchez,

(1st Cir. 2013) (citing Maldonado v.

Fontanes,

(1st Cir. 2009)). But, as we've

observed, "[t]he doctrinal intersection of qualified immunity

principles and summary judgment principles is not well mapped,"

and "[p]lotting that intersection can present thorny analytic

problems -- problems that are magnified because of the desire to

resolve claims of qualified immunity at the earliest practicable

stage of litigation." Morelli,

(citing Cox v.

Hainey,

(1st Cir. 2004)). Furthermore, in

qualified-immunity summary-judgment cases, it's a tug-of-war,

really, between who gets the benefit of the doubt: summary

judgment "requires absolute deference to the nonmovant's factual

- 33 - assertions," while qualified immunity "demands deference to the

reasonable, if mistaken, actions of the movant." Id. at 18-19.

We aim to resolve all of this tension by framing the

factual events according to summary judgment's traditional leeway

to the nonmoving party's version of events, and then asking

whether, given that story, "a reasonable officer should have known

that his actions were unlawful." Id. at 19.

iii. Walker is Qualifiedly Immune

Justiniano contends that the record contains enough

conflicting testimony about material facts to raise a genuine

dispute over whether Walker can be shielded by qualified immunity,

i.e., whether Walker's use of pepper spray was an inappropriate

and excessive use of force in violation of Justiniano's clearly

established right to be free from that use of force. And she

argues that the new evidence in particular "leaves a universe of

facts that support [her] claims": no one but Walker saw Justiniano

yelling in the road, heard any verbal threat by Justiniano, saw

anything in Justiniano's hands, or heard Walker give Justiniano

warnings about his intent to deploy force. In Justiniano's view,

since there's no witness who testifies that Justiniano was doing

anything other than simply approaching Walker when the pepper spray

was deployed, it is valid to infer the nature of his movement was

nonthreatening, and thus it was not reasonable for Walker to use

the spray.

- 34 - Walker, in turn, argues that none of the facts to which

Justiniano points lead to the conclusion that he is not shielded

by qualified immunity, and this is so even if all of Walker's

uncorroborated testimony is removed from consideration.

So now, as we leapfrog the initial elements of the

qualified-immunity analysis (recall that we're assuming arguendo

that the use of the pepper spray was unreasonable and Justiniano

had a clearly established right to be free from that use of force),

we confront the question of whether a reasonable officer in

Walker's shoes would have understood Walker's conduct to violate

Justiniano's constitutional right. See, e.g., Parker,

.

Even viewing the facts in the light most favorable to

Justiniano, removing from consideration any of Walker's

uncorroborated testimony, and drawing all reasonable inferences in

Justiniano's favor, the record here does not support a finding

that a reasonable officer would have clearly understood Walker's

conduct to be an unreasonable violation of Justiniano's rights.

Our careful review of the record here leaves us with

these undisputed facts to sketch the contours of what happened.

Kyriakides observed Justiniano driving erratically, and when they

both pulled over, he was confused, distraught, and spoke

unintelligibly. She was scared for Justiniano's wellbeing, as

well as her own and that of passersby. After Walker hit the scene,

- 35 - all three civilian witnesses (Kyriakides, Silva-Winbush, and

MacKeen) observed Walker at various points trying to calm down

and/or stop Justiniano from approaching him by using hand gestures.

They also described Justiniano as appearing distraught, even mad;

none observed Justiniano heeding Walker's hand gestures to calm

down or stop his approach. Silva-Winbush, who witnessed each

instance of pepper-spraying, indicated that the first use of the

spray (the complained-of rights-violation here) came only after

Walker had "jumped" into the highway as he continued to retreat

from Justiniano. And each of these witnesses described various

instances of Justiniano lunging or at least engaging in forward

motion towards Walker.

From an objective standpoint, a reasonable officer could

have believed Justiniano posed a threat, and thus that same

reasonable officer, in Walker's position, would not have believed

that the initial use of pepper spray (a generally non-lethal

deployment) against Justiniano constituted a violation of

Justiniano's rights. A contrary finding, even a contrary

inference, is simply not supportable on the evidence here.

True, witnesses describe Justiniano's movements

differently, and movement alone wouldn't necessarily justify the

use of pepper spray. And yes, the key here is Justiniano's

movements (or lack thereof, if that was the case) in the moments

before and as the pepper spray was used -- Justiniano being

- 36 - stationary, or approaching Walker in a decidedly nonaggressive

fashion, for example, because that's what a jury could rely on to

make inferences that Justiniano's behavior did not warrant the use

of force he received because Walker couldn't have reasonably

thought Justiniano posed a threat. But there is no witness

testimony that Justiniano was stationary in the moment before the

pepper spray was used; rather, all the evidence points to

Justiniano steadily moving towards Walker in one fashion or

another. Yes, MacKeen indicated both men were stationary when she

first saw them, but for one thing, it's not entirely clear when

exactly she observed this (as best we can tell, it's probably after

the pepper-spraying went down, and just before the shooting --

either way, she doesn't say when Justiniano was stationary in

relation to when the pepper spray was used), and for another, she

said Justiniano did then approach Walker. And there's nothing

that would support a reasonable inference that the nature of any

of Justiniano's movements forward was anything other than

aggressive if not downright threatening (even if Justiniano's

behavior is sadly explained by his mental state). See, e.g.,

Suarez v. Pueblo Int'l, Inc.,

(1st Cir. 2000) ("[A

plaintiff] cannot rely on an absence of competent evidence, but

must affirmatively point to specific facts that demonstrate the

existence of an authentic dispute." (quoting McCarthy v. Nw.

Airlines, Inc.,

(1st Cir. 1995))). Quite the

- 37 - opposite: in the face of the evidence we do have about

Justiniano's demeanor, reaching such a conclusion would require

impermissible guesswork and speculation. Justiniano needed to

point to specific facts that would allow a jury to find in her

favor on this point, Mulvihill,

, but we find

ourselves left only with arguments requiring "improbable

inferences[] and unsupported speculation" to reach the outcome she

seeks, Medina-Muñoz,

. Even framing the facts as

favorably as we can according to Justiniano's version of events

(no pen-as-weapon in the narrative, no threats issued to Walker by

Justiniano), we cannot conclude on this record that a reasonable

officer in Walker's position would have known his conduct (using

the pepper spray) was unlawful under these circumstances. See,

e.g., Morelli,

. Accordingly, the magistrate judge

was correct that Walker is entitled to qualified immunity.15

Therefore, we affirm the grant of summary judgment, and,

15 Justiniano directs us to Gray v. Cummings,

(1st Cir. 2019), another qualified-immunity case involving an encounter between a mentally ill individual and a law enforcement officer. The goal, it seems, was to argue that a person's mental illness must be considered when an officer decides to employ force against that individual. But the Gray court's conclusion was that a reasonable officer wouldn't have believed using a taser on the lowest stun setting to halt a nonviolent, mentally ill individual resisting arrest was a violation.

. This does not undermine any of our analysis: a reasonable officer in Walker's shoes could have believed that the first use of pepper spray on Justiniano (who was behaving erratically, moving forward toward Walker and oncoming traffic on a highway and not known to Walker to be mentally ill) wasn't a constitutional violation.

- 38 - for the same reasons, we affirm the denial of the Rule 60 motion

to vacate.16

WRAPPING UP

Before we go, we note that Justiniano also briefed an

16 A housekeeping matter. Justiniano urges us to conclude that the magistrate judge abused his discretion when he refused to vacate his earlier summary-judgment grant. In so doing, Justiniano raises arguments under both sections (b)(2) and (b)(3) of Rule 60. Rule 60(b)(2), dealt with by the lower court because it was argued there, provides that a party can be relieved from a judgment like the one entered here if there is "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." Rule 60(b)(3), raised for the first time on appeal, instructs that relief can be granted where there's "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party." According to Justiniano, the magistrate judge abused his discretion in his handling of the Rule 60 motion for reasons falling under each of these two sections of that rule. But here's the thing: even taking as not waived the (b)(3) argument that fraud and misconduct by the Massachusetts State Police is what kept the evidence from being discovered in this action, these components of Rule 60(b) assume that the at-issue evidence was never discovered, accessed, or considered in ruling on the original dispositive motion the Rule 60(b) motion seeks to vacate -- and that's precisely why the rule exists, to remedy just such a plight. Here, we've already said (ad nauseum) that we assume favorably to Justiniano that the "newly discovered evidence" could be considered, and doing that had the effect of negating all of Walker's uncorroborated testimony. That's exactly the point that Justiniano wanted to make in arguing that the summary-judgment grant should not stand. But the thrust of Rule 60(b) as applied here is that the excluded or inaccessible evidence would need to change the outcome on the dispositive motion. We let it in, and it didn't alter the outcome of our qualified-immunity analysis. So we do not tarry any further on this because, with the outcome determined to be the same with or without the evidence, the magistrate judge did not abuse his discretion in fielding the Rule 60 motion as he did.

- 39 - argument urging us to abandon the application of qualified immunity

in cases resulting in death. As we acknowledged at the outset of

today's decision, we do not disagree that the issue of qualified

immunity's role in our jurisprudence is topical, to say the least.

But we are constrained by the precedent that led to today's

outcome, and until that precedent changes, we are dutybound to

apply it.

For the reasons explained in detail above, we affirm

across the board the lower court's disposition of this case. Each

side to bear its own costs.

- 40 -