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Marrero-Mendez v. Calixto-Rodriguez

United States Court of Appeals, First Circuit

July 19, 2016

GUILLERMO CALIXTO-RODRÍGUEZ, former Carolina Area Commander for the Puerto Rico Police Department; MARIO RIVERA, Chief of the Carolina Precinct of the Puerto Rico Police Department; RICARDO CRUZ-DOMÍNGUEZ, Supervisor of the Puerto Rico Police Department, Defendants, Appellees, HÉCTOR PASQUERA, Superintendent of the Puerto Rico Police Department; WILLIAM OROZCO, Carolina Area Commander of the Puerto Rico Police Department, Defendants.


          Margarita Mercado-Echegaray, Solicitor General of the Commonwealth of Puerto Rico, with whom Andrés González-Berdecía, Assistant Solicitor General, was on brief, for appellants.

          Heather L. Weaver, with whom Daniel Mach, the American Civil Liberties Union Foundation, Josué Gonzalez-Ortiz, William Ramirez, and the ACLU of Puerto Rico were on brief, for appellees.

          Before Torruella, Lipez, and Thompson, Circuit Judges.


         Plaintiff Alvin Marrero-Méndez ("Marrero"), an officer in the Puerto Rico Police Department ("PRPD"), filed a § 1983 action, claiming that his superior officers ("appellants") violated the Establishment Clause by holding a group prayer while on duty and punishing Marrero for his non-conformance. Appellants moved to dismiss the complaint, claiming a failure to allege plausibly a constitutional violation and invoking qualified immunity. The district court denied their motion. In this interlocutory appeal challenging only the denial of qualified immunity, we affirm the district court's decision.


         The denial of qualified immunity on a motion to dismiss is immediately appealable. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); Penn v. Escorsio, 764 F.3d 102, 105 (1st Cir. 2014). Hence, we review the district court's rejection of qualified immunity, accepting, as we must, all well-pleaded facts in the light most favorable to Marrero. See Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 17 (1st Cir. 2011); Maldonado v. Fonatanes, 568 F.3d 263, 266 (1st Cir. 2009).

         Marrero has been a police officer in the PRPD since 1999. Prior to the alleged incident, Marrero's responsibilities consisted of law enforcement tasks, such as patrolling, conducting arrests, and undertaking other crime-prevention activities.

         On March 9, 2012, Officer Guillermo Calixto-Rodríguez ("Calixto"), a regional commander of the PRPD, summoned forty PRPD officers for a meeting in the parking lot of a shopping mall to discuss a plan for an intervention to take place nearby. Marrero was among those in attendance, as were two of his superiors, Officers Mario Rivera ("Rivera") and Ricardo Cruz-Domínguez ("Cruz"). All of the officers stood in military formation. Toward the end of the meeting, Calixto asked for a volunteer to lead the group in a prayer. These meetings, which occurred every other month or so, typically included a Christian invocation or closing prayer.

         On this occasion, Marrero -- who is an "open atheist" -- called Calixto aside and told him that "he object[ed] to such official prayers because they promote[d] religious beliefs to which he [did] not subscribe." He added that "he felt very uncomfortable taking part in the prayer and that he did not want to participate." Marrero also informed Calixto that the prayer violated PRPD regulations, which provided that "[a] strict separation shall be maintained between the church and state."

         Calixto became "upset" and ordered Marrero to "abandon the formation." As Marrero was walking away from the group, Calixto shouted that Marrero should stop and stand still until the prayer was finished. Calixto also shouted, in front of the entire formation, that Marrero was standing apart from the group because "he doesn't believe in what we believe in." Marrero felt humiliated. Obeying Calixto's order, Marrero stood, with his back to the formation, until the prayer ended.

         After the meeting, Marrero worked with Cruz, his immediate supervisor, for the rest of the night. Marrero told Cruz that he was upset about the incident with Calixto, and that, as a result, he preferred to be assigned to his usual duties at the airport, away from the area in which the intervention meeting took place. Marrero also began to cry because of the humiliation he had experienced. While on their way to the airport, Marrero told Cruz that he intended to file an administrative complaint about the incident. When they arrived at the airport, Cruz instructed Marrero to hand over his weapon because he was in an emotional state, and to report to Rivera the following Monday to receive further orders about a transfer.

         The following Monday, March 12, 2012, Marrero filed an administrative complaint at the PRPD.[1] Two days later, he also met with Rivera, as instructed by Cruz. Rivera presented Marrero with two transfer options: report to the Command Office for clerical tasks or stay in the airport station to perform vehicle-maintenance tasks. Both options were effectively demotions from Marrero's usual responsibilities. Marrero chose the latter and has since carried out vehicle-related and other such tasks, not the law enforcement activities for which he was trained.

         On March 8, 2013, Marrero filed this action, claiming that appellants violated the Establishment Clause by "expos[ing] [him] to unwanted religious exercise and messages by [PRPD] officials."[2] He also alleged that appellants' conduct "endorse[d]" religion and "entangle[d]" the PRPD with religion. Additionally, Marrero claimed that appellants retaliated against him for refusing to participate in, and speaking out in opposition to, the prayer and for filing an administrative complaint regarding the prayer practices.[3] Appellants moved to dismiss the ...

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