Rivera-Corraliza v. Puig-Morales , 794 F.3d 208 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 13-2138
PABLO JAVIER RIVERA-CORRALIZA, on his own behalf and as
President of PJ ENTERTAINMENT, INC.; CARLOS CRUZ-ALVERIO; JAIME
RODRÍGUEZ-VEGA; ELLIS LINFERNAL-CRUZ, on his own behalf and as
President of the ASOCIACIÓN DE OPERADORES DE MÁQUINAS DE
ENTRETENIMIENTO DE ADULTOS DEL OESTE, INC.; RICARDO HERNÁNDEZ-
ECHEVESTRE on his own behalf and as President of RICARDO'S
ENTERTAINMENT CORP.,
Plaintiffs, Appellants,
v.
JUAN CARLOS PUIG-MORALES; AILEEN DE LEÓN-GARCÍA; VÍCTOR R.
PÉREZ-PILLOT; ZULMA I. RIVERA-GÓMEZ; DAVID CARABALLO-MALDONADO;
MARÍA C. MEDINA-ORTIZ; ABIMAEL RODRÍGUEZ-LÓPEZ; ALFREDO E.
PÉREZ-RIVERA; HÉCTOR O. GADEA-RIVERA; RAFAEL A. DIEZ DE ANDINO;
MILTON VESCOVACCI-NAZARIO; MARISOL FLORES-CORTÉS; JOHN DOE I-XX,
all in their personal capacities,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
Christian J. Francis-Martinez, with whom José J. Gueits-Ortiz
and Francis & Gueits Law Offices, PSC, were on brief, for
appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Margarita L. Mercado-Echegaray,
Solicitor General, was on brief, for appellees.
July 22, 2015
THOMPSON, Circuit Judge.
Overview
Ticked off that agents of the Puerto Rico Treasury
Department had seized their "adult entertainment machines"
("AEMs," to save keystrokes), today's plaintiffs sued the
supposedly responsible parties for damages under 42 U.S.C. § 1983,
alleging (as relevant here) violations of the First, Fourth, and
Fourteenth Amendments as well as several commonwealth laws. The
district court granted defendants summary judgment on the federal
claims and dismissed the commonwealth claims without prejudice.
And plaintiffs are now here asking us to undo the court's ruling.
Agreeing with some of what they say, we vacate in part, affirm in
part, and remand for further proceedings. We will explain our
thinking shortly. First, the facts, which we present in the light
most favorable to plaintiffs (the summary-judgment losers),
drawing all supportable inferences in their favor. See, e.g.,
Soto-Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 2, 5 (1st Cir. 2012).
Background
Games People Play
Plaintiffs hold licenses from the Puerto Rico Treasury
Department ("Treasury," for short) authorizing them to own and
operate AEMs. Plaintiffs are also members of "EMPRECOM," a
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business association of AEM owners.1 AEMs are nothing more than
coin-operated arcade-game-like machines found in small businesses
(liquor stores, gas stations, etc.) that are not supposed to award
cash prizes (winners get bonus games) — which makes AEM games
different from gambling machine games (more on this later).2 But
unscrupulous owners (we are told) occasionally convert AEMs into
illegal gambling machines (say, for instance, slot machines),
which is a major worry for Treasury.
According to plaintiffs (whose account we accept for
purposes of summary-judgment review), here is how the suit arose:
Sometime in early 2009 — possibly in February or March
(the record is not exactly clear) — plaintiff Pablo Javier Rivera-
Corraliza (EMPRECOM's president) met with Treasury Secretary (and
defendant) Juan Carlos Puig-Morales, a big backer of a movement to
install video-lottery terminals islandwide; as we understand it,
these terminals are noncasino gaming machines that would connect
to a system designed to collect tax revenue. Anyway, the two had
a friendly conversation about issues affecting AEMs. They, for
example, touched on a bill pending in the Puerto Rico legislature
1 EMPRECOM is the Spanish acronym for the "Puerto Rican Commercial
Recreation Business."
2 See generally Sun Design Video v. Puerto Rico, 136 P.R. Dec. 763
(1994) (certified English translation, slip op. at 11-18)
(discussing the differences).
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that would require that all AEMs connect to a central system at
Treasury for monitoring purposes. And they talked about Puig-
Morales's desire to go after AEM operators holding forged licenses
— something EMPRECOM applauded.
But Puig-Morales was anything but friendly at a follow-
up meeting the next month, telling Rivera-Corraliza point blank
that every AEM was "illegal" and had to be "confiscated." Hold
on, said Rivera-Corraliza, Treasury had issued "8,000" AEM permits
yet there are roughly "14,000" AEMs "out on the streets" — just go
after the fake-license holders, he implored Puig-Morales. "We'll
see about that" was Puig-Morales's reply.
Treasury started seizing AEMs around this time. But
none belonged to plaintiffs — Treasury did not start seizing theirs
until February 2010, as we will soon see.
Around the spring of 2009 (the record does not reveal
when) Puig-Morales told plaintiff Jaime Rodríguez-Vega (EMPRECOM's
treasurer) that AEM owners should exchange their machines for the
video-lottery machines of Caribbean Cage, Inc., a company that
specializes in gaming systems. Puig-Morales promised to stop the
seizures if they made the switch to Caribbean Cage's machines.
And Puig-Morales said essentially the same thing to Rivera-
Corraliza, telling him that AEM owners would not have to worry
about seizures if they "signed up" with Caribbean Cage.
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So Rivera-Corraliza inked a deal with Caribbean Cage on
behalf of EMPRECOM (when, we do not know). Under the agreement,
EMPRECOM members were to provide the venues for the video-lottery
terminals. And Caribbean Cage promised to pay any fees EMPRECOM
members might owe Treasury.
In August 2009 Puig-Morales issued a letter of intent to
negotiate with Caribbean Cage about installing video-lottery
terminals islandwide. For this to work, though, EMPRECOM and its
members had to be on board, as Puig-Morales well knew. But
EMPRECOM members became distinctly unhappy when Puig-Morales told
EMPRECOM representatives during that same month that they had to
pay a $2,250 license fee for each video-lottery machine. And when
EMPRECOM members balked, Puig-Morales slammed his hand on a desk
and screamed that they had until the end of the day to resolve the
problem — and if they did not, then all their AEMs would
"disappear." Ultimately (for reasons this record does not
illuminate) the deal between EMPRECOM and Caribbean Cage fell
through and Treasury installed no video-lottery terminals
anywhere.
Shortly after the table-slamming meeting, Puig-Morales
went on a media campaign to trash AEM owners (the record does not
indicate precisely when the offensive started, though). He told
one interviewer, for example, that he "hated" AEMs and favored
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installing video-lottery terminals throughout Puerto Rico
(plaintiffs have not told us when he said this). He told another
interviewer that all AEMs were "illegal" (plaintiffs have not told
us when he said that). And he told a third interviewer in February
2010 (finally, a date!) that he was going to "eliminate" the AEM
industry because neither the governor nor the public supported
AEMs. Not willing to take Puig-Morales's attacks lying down,
Rivera-Corraliza also gave interviews to the media in which he
defended AEM owners — though the record evidence plaintiffs point
us to does not say how many interviews he gave and when.
In late 2009 or early 2010 Puig-Morales appointed
defendant Abimael Rodríguez-López head of a special Treasury task
force charged with dealing with AEMs. When Rodríguez-López was
absent, then defendant Alfredo Pérez-Rivera was in charge. Agents
on the task force — like defendant Victor Pérez-Pillot, for example
— took an eight-hour course in how to inspect AEMs for
illegalities. And they went about inspecting AEMs this way
(Treasury had no manuals or guidelines covering how to inspect
AEMs):
Task-force agents identified businesses with AEMs. And
once they got the go-ahead from Rodríguez-López, they would inspect
the AEMs, examining the licenses and then the machines themselves
— even if the licenses checked out. In fact, even if the AEMs'
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exterior looked okay, agents would ask the businesses' owners to
unlock the machines, and if the owners refused, agents would break
the locks open — simply on Rodríguez-López's say-so, even without
probable cause or a search warrant.
Defendants Milton Vescovacci-Nazario and Marisol Flores-
Cortés — two outside lawyers Puig-Morales had hired to remind
agents about the dos and don'ts of AEM inspections — signed off on
the lock-breaking protocol around February 2010. And Puig-Morales
signed off on the entire seek-and-find procedure. Another high-
ranking Treasury official — defendant Héctor O. Gadea-Rivera — let
task-force agents conduct inspections as they had been doing before
he came on board on July 1, 2010. And still another — defendant
Rafael Diez de Andino — also signed off on the inspection procedure
when he became a deputy director at Treasury on September 15, 2010,
or so plaintiffs claim.3 But before that, Diez de Andino (who was
at Treasury, though we're not sure what his title was) had a hand
(at least as early as February 2010) in telling agents which
businesses to inspect.
Rivera-Corraliza is not only EMPRECOM's president; he is
also president of PJ Entertainment, Inc., a corporation that owned
AEMs. Early in the morning of February 26, 2010, he got a call
3 We say "claim" because the record citations in their brief say
nothing to support the point.
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from the owner of a liquor store — which was then closed — saying
that task-force agents were seizing some of PJ Entertainment's
AEMs without a warrant. The store was not on the list of businesses
to be inspected that day. But Diez de Andino had ordered Pérez-
Pillot to go there.
Rivera-Corraliza got to the scene lickety-split. Just
then, Puig-Morales reached him on his cell phone. "How are the
guys behaving?" Puig-Morales asked. Pérez-Pillot "wants to take
the machines" Rivera-Corraliza explained, to which Puig-Morales
replied, "Good fellow, good fellow" (referring to Pérez-Pillot).
Agents claimed the seized AEMs had "knock-off switches" — i.e.,
devices that make it possible for players to redeem winnings and
for the operators to reset the machines. See 15 L.P.R.A. § 82(3)
(part of the "Games of Chance Act"). A knock-off switch is a
telltale sign of illegal gambling machines. See id. But Rivera-
Corraliza insists that none of his company's AEMs had a device
like that. And when he got to inspect the AEMs months later he
allegedly saw that the games had been changed and that some were
broken.
Over the next few months task-force agents (including
some of the defendants named here) seized more AEMs belonging to
PJ Entertainment as well as AEMs belonging to the remaining
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plaintiffs.4 Here is how plaintiffs paint the picture: Agents
inspected AEMs without warrants, sometimes when the stores were
closed. Agents checked out an AEM's interior even if the license
seemed in order, breaking the AEM's lock if the owner refused to
open the machine. Agents then confiscated AEMs, contending that
the machines had been altered to run like illegal gaming machines
— one plaintiff claims that an agent, defendant Aileen de León-
García, told him that she found nothing illegal after looking
inside his AEMs, but defendant Rodríguez-López had ordered her to
take the AEMs anyway for further investigation. And when
plaintiffs later inspected the AEMs, they saw that the machines
had been broken or damaged.5 Puig-Morales told agents to fine only
AEM owners for any illegalities, not the owners of the businesses
housing the AEMs (we will call these "establishment owners" the
4 The exact dates are: May 12, 2010; May 24, 2010; June 29, 2010;
July 22, 2010; August 7, 2010; August 24, 2010; August 27, 2010;
September 27, 2010; and December 2, 2010.
5 The parties agree that "months" after the seizures (the record
does not say exactly when) someone broke into the warehouse holding
plaintiffs' AEMs and damaged or stole the machines' parts.
Defendants suggest that the person who broke into the warehouse —
and not any inspecting agent — bears responsibility for the AEMs'
damage.
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rest of the way).6 He also told agents to fine the AEM owners
$5,000 "per machine."
In mid-to-late 2010 plaintiffs or their companies filed
suits in a local court (the Puerto Rico Court of First Instance)
challenging the forfeiture of AEMs. Plaintiffs, however, point us
to nothing in the record indicating how the suits turned out.
Going for Broke
Following these events plaintiffs sued defendants in
Puerto Rico's federal district court for money damages under
section 1983 — the statute that (at the risk of oversimplification)
provides a civil remedy for state action that deprives persons of
federal statutory or constitutional rights. See Klunder v. Brown
Univ., 778 F.3d 24, 30 (1st Cir. 2015). Essentially plaintiffs
accused defendants of violating the Fourth Amendment's search-and-
seizure provisions by doing baseless inspections and
confiscations, infracting the Fourteenth Amendment's due-process
clause by not offering predeprivation hearings, and defying the
Fourteenth Amendment's equal-protection clause by treating them
differently from the establishment owners.7 Rivera-Corraliza —
6 Plaintiffs intimate that AEM owners and establishment owners are
(at least for present purposes) mutually exclusive groups.
7 Plaintiffs also alleged that defendants' actions violated the
Eighth Amendment's excessive-fines clause — yet another claim the
district court dismissed on summary judgment. Plaintiffs have not
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and Rivera-Corraliza only — also accused defendants of retaliating
against him for exercising his First Amendment right to free
speech. And plaintiffs all asserted supplemental local-law
claims, which mirrored their federal-law claims.
After some discovery defendants moved for summary
judgment, arguing (among other grounds) that (a) they never
violated any of plaintiffs' constitutional rights — but if they
had offended plaintiffs' search-and-seizure and due-process
rights, they were entitled to qualified immunity — and that
(b) they should get judgment as a matter of law on the state
claims. Plaintiffs opposed. Taking up the motion, the district
court ruled, relevantly, as follows: On the search-and-seizure
claim, the court found defendants' actions constitutional — under
the administrative-search exception to the warrant requirement —
and even if not, defendants were qualifiedly immune because they
violated no bright-line rule. And, the court added, given the
commonwealth's need to act quickly to protect the public from
apparently illegal AEMs, the postdeprivation remedies offered
satisfied the minimal requirements of due process. Plaintiffs'
equal-protection claim misfired, the court said, because AEM
owners and establishment owners are not similarly situated. As
argued that the court got that ruling wrong. So we say no more
about it.
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for Rivera-Corraliza's speech-retaliation claim, the court found
he had failed to show how his talking to the press substantially
motivated defendants to act as they did. So the court granted
defendants summary judgment on the federal-law claims and then
relinquished jurisdiction over the local-law claims.
Which brings us to today, with plaintiffs asking us to
vacate the district court's judgment and remand for a trial on all
claims.
Important Concepts to Keep in Mind
Before tackling plaintiffs' arguments, we make a few
preliminary comments:
Summary-Judgment Basics
As always, we give fresh review to the district court's
summary-judgment ruling, affirming if "there is no genuine dispute
as to any material fact" — even after giving plaintiffs the benefit
of all reasonable inferences in the record — and defendants are
"entitled to judgment as a matter of law." See Fed. R. Civ. P.
56(a); see also Morelli v. Webster, 552 F.3d 12, 18 (1st Cir.
2009). And we may affirm a summary judgment on any ground
supported by the record, even one not relied on by the court below.
See, e.g., Geshke v. Crocs, Inc., 740 F.3d 74, 76-77 (1st Cir.
2014); Boveri v. Town of Saugus, 113 F.3d 4, 6 (1st Cir. 1997).
Qualified-Immunity Basics
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The qualified-immunity defense is in play on two claims,
don't forget — the search-and-seizure claim and the due-process
claim. And to overcome that defense plaintiffs must make a two-
step showing — that (a) defendants violated a statutory or
constitutional right and that (b) the right was clearly established
at the time. See, e.g., City & Cnty. of S.F. v. Sheehan, 135 S.
Ct. 1765, 1774 (2015); McGrath v. Tavares, 757 F.3d 20, 29 (1st
Cir. 2014). The clearly-established step requires plaintiffs to
identify "'controlling authority' or a 'robust consensus'" of
"'persuasive authority'" such that any reasonable official in the
defendant's position would have known that the challenged conduct
is illegal "in the particular circumstances that he or she faced"
— then-existing precedent, in other words, "'must have placed the
statutory or constitutional question . . . beyond debate.'"
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2083, 2084 (2011)); accord Rocket
Learning, Inc. v. Rivera-Sánchez, 715 F.3d 1, 9, 10 (1st Cir.
2013). Courts penalize officers for violating "bright lines," not
for making "bad guesses in gray areas." See Maciariello v. Sumner,
973 F.2d 295, 298 (4th Cir. 1992); see also al-Kidd, 131 S. Ct. at
2086-87 (Kennedy, J., concurring) (emphasizing that qualified
immunity applies if defendants have no "'fair and clear warning'
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of what the Constitution requires" (quoting United States v.
Lanier, 520 U.S. 259, 271 (1997))).
If plaintiffs stumble at either step — taken in any order
we like, see Pearson v. Callahan, 555 U.S. 223, 236 (2009) — their
search-and-seizure and due-process claims go kaput, see Quintero
de Quintero v. Aponte-Roque, 974 F.2d 226, 228 (1st Cir. 1992)
(noting that when a defendant invokes qualified immunity, the
burden is on the plaintiff to show the inapplicability of the
defense). Also and importantly, judges are free to jump directly
to — and decide the case exclusively on — the clearly-established
step in certain situations. See Camreta v. Greene, 131 S. Ct.
2020, 2032 (2011). Examples of when judges should follow that
course include: if dealing with the constitutional-violation step
requires "uncertain assumptions about state law" or creates "a
risk of bad decisionmaking" because the briefs are bad; if
discussing both steps risks "bad decisionmaking" because the court
may believe the law is not clearly established and so give little
thought to whether the constitutional right exists; and if the
canon of "constitutional avoidance" counsels against focusing on
the constitutional-violation step because "it is plain that a
constitutional right is not clearly established but far from
obvious whether in fact there is such a right." Pearson, 555 U.S.
223, 237-41 (2009); accord Kerns v. Bader, 663 F.3d 1173, 1180-81
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(10th Cir. 2011) (discussing Pearson and Camreta). Reduced to
simplest terms, "courts should think hard, and then think hard
again, before turning small cases into larger ones," see Camreta,
131 S. Ct. at 2032 — sage words, indeed.
Now on to plaintiffs' claims.
Our Take on the Case
Search-and-Seizure Claim
First up is plaintiffs' claim that defendants'
warrantless searches and seizures violated the Fourth Amendment
(applied to Puerto Rico by the Fourteenth). For their part
defendants insist that they are shielded from this claim by
qualified immunity, arguing that they acted pursuant to the
administrative-search exception to the warrant requirement,
meaning they violated no Fourth Amendment right — let alone any
clearly-established Fourth Amendment right.
(a)
Administrative Searches
For anyone unfamiliar with administrative searches,
here's a quick primer:
The Fourth Amendment protects us from "unreasonable
searches and seizures." See U.S. Const. amend. IV. It also says
that "no Warrants shall issue, but upon probable cause." Id.
Reasonableness is the amendment's central command, however, see
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Kentucky v. King, 131 S. Ct. 1849, 1856 (2011), with reasonableness
determined by weighing the government's need for the search against
the degree of intrusion into a citizen's privacy interests, see,
e.g., Camara v. Mun. Court of City & Cnty. of S.F., 387 U.S. 523,
536-37 (1967); Ruskai v. Pistole, 775 F.3d 61, 68 (1st Cir. 2014).
This amendment covers searches of homes and commercial
premises, our judicial superiors tell us. See, e.g., City of Los
Angeles v. Patel, No. 13-1175, 2015 WL 2473445, at *7 (U.S. June
22, 2015); New York v. Burger, 482 U.S. 691, 699-700 (1987). And
staying with commercial premises, we know that because the
government has a "heightened" interest in regulating commerce,
persons running commercial premises have a lessened expectation of
privacy. United States v. Maldonado, 356 F.3d 130, 134-35 (1st
Cir. 2004) (citing Burger, 482 U.S. at 700). Yet even when a
search is done to enforce a regulatory scheme, a warrant is often
required — though in that situation, the "probable cause" of which
the Fourth Amendment speaks can be something less than probable
cause to believe the law is being violated. See, e.g., Marshall
v. Barlow's, Inc., 436 U.S. 307, 320 (1978) (explaining that for
administrative-search purposes, "probable cause justifying the
issuance of a warrant may be based . . . on a showing that
'reasonable legislative or administrative standards for conducting
an . . . inspection are satisfied with respect to a particular
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[establishment]'" (second and third alterations in original)
(quoting Camara, 387 U.S. at 538)).
But because "reasonableness" is the standard, the
Supreme Court has approved certain exceptions to the Fourth
Amendment's warrant and probable-cause requirements in compelling
situations. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403
(2006); Burger, 482 U.S. at 702. One is for searches of
pervasively-regulated businesses. The idea is that "when an
entrepreneur embarks upon such a business, he has voluntarily
chosen to subject himself to a full arsenal of governmental
regulation," and thus a warrantless search to enforce that
regulatory regime is not unreasonable. Marshall, 436 U.S. at 313.8
Searches of this sort can affect an infinite number of people and
places, obviously. So to stop inspectors from running amok,
several things are critical. The first is that the government
8 See also New York v. Burger, 482 U.S. 691 (1987) (automobile
junkyard); Donovan v. Dewey, 452 U.S. 594 (1981) (coal mine);
United States v. Biswell, 406 U.S. 311 (1972) (gun dealer);
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)
(liquor dealer); United States v. Gonsalves, 435 F.3d 64 (1st Cir.
2006) (drug storage); United States v. Maldonado, 356 F.3d 130
(1st Cir. 2004) (interstate commercial trucking); Blue v. Koren,
72 F.3d 1075 (2d Cir. 1995) (nursing homes); Lesser v. Espy, 34
F.3d 1301 (7th Cir. 1994) (rabbitry); United States v. Chuang, 897
F.2d 646 (2d Cir. 1990) (banking); Shoemaker v. Handel, 795 F.2d
1136 (3d Cir. 1986) (horse racing); Rush v. Obledo, 756 F.2d 713
(9th Cir. 1985) (daycare facilities); Pollard v. Cockrell, 578
F.2d 1002 (5th Cir. 1978) (massage parlors).
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have a substantial interest in regulating the business. The next
is that warrantless inspections further this interest. And the
third is that the regulations offer "a constitutionally adequate
substitute for a warrant" by giving notice to those regulated and
limiting the inspectors' discretion in "time, place, and scope."
Burger, 482 U.S. at 703 (internal quotation marks omitted).
Collectively, these factors — a pervasively-regulated business, a
substantial government interest in regulating the business,
administrative searches that advance this interest, and a
regulatory scheme that prescribes alternative safeguards — make up
what we call the Burger test.9
Judges must never forget that while the Constitution
okays warrantless searches in some situations, it never okays
unreasonable ones.10 Also, the Burger test is a carefully-drawn
screen that we — and all courts — must jealously protect,11 lest
9 See Tart v. Massachusetts, 949 F.2d 490, 498 (1st Cir. 1991);
see also Gonsalves, 435 F.3d at 67-68.
10 See Camara, 387 U.S. at 523, 536-37 (recognizing that the
reasonableness of an administrative search depends on "balancing
the need to search against the invasion which the search entails").
11See generally Jones v. United States, 357 U.S. 493, 499 (1958)
(stressing that warrantless searches must fall within one of the
narrow "jealously and carefully drawn" exceptions to the Fourth
Amendment).
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this particular warrantless-search exception destroy the Fourth
Amendment.12
(b)
Reader Alert
Shifting from the general to the specific, we next talk
about the Burger test in the context of this case, eventually
noting how the district court never explicitly addressed whether
the relevant regulatory regime provides an acceptable warrant
substitute. The absence of an express analysis here leaves a
critical gap in the qualified-immunity ruling, because the
presence (or not) of an adequate warrant stand-in affects whether
defendants violated plaintiffs' Fourth-Amendment rights and
whether any such rights were clearly established when they acted.
Believing it better to have the benefit of the district court's
12 We need not decide whether Patel — the Supreme Court's most
recent decision dealing with Burger — changed the Burger test in
any way. That is because the key question for qualified-immunity
purposes is whether the law was clearly established when the
complained-of actions occurred. See, e.g., Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012) (discussing the state of the law "at
the time of [the] arrest"); al–Kidd, 131 S. Ct. at 2083 (focusing
on whether the law was clearly established "at the time of the
challenged conduct"). Notice — prior notice, not after-the-fact
notice — is what matters, because officers need to know when they
are doing wrong. See Reichle, 132 S. Ct. at 2093; see also
Plumhoff, 134 S. Ct. at 2023 (stressing that a court need "not
consider later decided cases because they 'could not have given
fair notice to'" the agent (quoting Brosseau v. Haugen, 543 U.S.
194, 200 n.4 (2004))). And Patel was not around when the events
here went down.
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judgment on this vitally-important issue in the first instance, we
— for reasons shortly stated — ultimately remand the search-and-
seizure matter.
(c)
Pervasive Regulations
Our parties spar quite a bit over whether AEMs are part
of a highly-regulated undertaking. The test for whether an
industry fits that bill is whether the state's regulatory presence
is so pervasive that business owners cannot help but know that
their commercial properties may be periodically inspected for
specific purposes. See Burger, 482 U.S. at 705 n.16. Burger
upheld the warrantless inspection of a junkyard's records,
permits, and autos. Id. at 693-95. In doing so the Court found
that auto junkyards fit within the definition of closely regulated
for these reasons: The regulatory scheme required junkyard owners
to get licenses and registration numbers from the state; display
the registration numbers prominently at the businesses; keep books
recording purchases and sales of autos and auto parts; and make
the books and autos available for inspection. Id. at 704.
Junkyard owners could also get hit with criminal penalties, license
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revocation, and civil fines if they failed to comply. Id. at 704-
05.
With this in mind, now consider the following:
 The Games of Chance Act, also called the Gambling Act. This
Act singles out as unlawful all "games of chance." 15
L.P.R.A. § 82. A familiar example of a game of chance is a
slot machine.13 Id. As for AEMs, they are "legal." Id. And
the Act defines AEMs as "those machines that do not have
mechanisms or apparatus that are characteristic of gambling
machines . . . ." 15 L.P.R.A. § 82a(a). The Act says that
when AEMs "are located and operated in a business authorized
therefor, the permit for their use . . . shall establish that
13"Games of chance" are machines that have "any of the following"
things:
(1) An apparatus to accept wagers that are
registered on a counter inside the machine.
(2) A mechanism to award cash prizes to the
player, a coin dispenser (hopper) which awards
the prize directly to the player, or a meter
which can register or credit cash payments to
the player.
(3) A knock-off switch to erase the credits
once they are paid to the winning player.
(4) An apparatus or mechanism that causes the
machine to function with total autonomy of the
player for a predetermined cycle or space in
time and which causes that the result of the
game or operation of the machine is decided by
chance or luck.
Id. § 82 (1)-(4).
- 22 -
they must be located at a distance of over two hundred (200)
meters from a public or a private school or from a church or
congregation that seeks spiritual serenity," 15 L.P.R.A. § 83
— a serious operating restriction, for sure. The Act also
tells the Treasury secretary to "establish the necessary
procedure to ensure that every machine to be authorized as an
[AEM] machine is personally evaluated and certified to be an
[AEM]" by the appropriate Treasury agents. Id. The Act lets
the Treasury secretary hit AEM owners with administrative
fines (ranging from $5,000 to $10,000) for each violation of
the Act. 15 L.P.R.A. § 84a(a). And the Act makes it a felony
for anyone either to prevent agents from inspecting the places
for the purpose of conducting investigations under the Act or
to admit or encourage persons under age 18 "to operate" AEMs.
Id. § 84a(b)(3).
 Treasury Regulation 7437. That regulation — designed to
(among other things) implement the provisions of the Games of
Chance Act — covers a lot of ground too. To get a flavor of
what this provision is about, we note that the regulation
deals with things like what documents are needed to get AEM
licenses — "criminal background" and "debt" certificates, and
"sworn statements" from establishment owners promising not to
let persons under 18 use AEMs. It says where to file the
- 23 -
papers — at a district office near the applicant's place of
business, for example. It lists the yearly "license fee" for
each AEM — $2,250. It mentions how the license must be
"available for inspection" by Treasury agents and where AEMs
must have identifying "tag[s]" — on their "upper right side."
And it discusses when the Treasury secretary "may deny,
suspend or revoke" a license — if, for instance, a license
holder or its representative prevents the secretary from
inspecting the place of business or examining the relevant
"documents, books, records or reports." See P.R. Treas. Reg.
7437, arts. 2040-1, 2044-1 (certified English translation, at
3-9, 21-26).
 The Internal Revenue Code. The Code empowers the Treasury
secretary to examine "documents, assets," and "inventories"
tied to "activities subject to the taxes and fees" under the
commonwealth's internal revenue code and to also "[s]eize and
sell at public auction or destroy . . . any . . . device whose
operation is illegal" under "the Games of Chance Act." See
13 L.P.R.A. § 8140(a)(1), (7)(G).14
14Section 8140 was in vogue at the time of the events in issue.
The Puerto Rico legislature repealed that section in 2011 and
replaced it with a basically-similar section, 13 L.P.R.A.
§ 33221(a)(1), (7)(G).
- 24 -
 The Uniform Administrative Procedure Act. This statute
declares that agencies (like Treasury) can conduct
inspections — "without a prior order" — to ensure compliance
with the laws and regulations within the agencies' domain.
See 3 L.P.R.A. § 2191.
 And Federación Operadores de Máquinas de Entretenimiento,
Inc. v. Puerto Rico. After canvassing the relevant statutory
and regulatory mosaic, this decision from Puerto Rico's
intermediate appellate court — issued when defendants were
still in the throes of investigating plaintiffs' AEMs — says
that the AEM business is closely regulated. See 2010 WL
4792673, Civ. No. KLCE201000987 (TCA Aug. 30, 2010)
(certified English translation, slip op. at 11-12, 18-19).15
Fairly viewed, this regime is at least as (if not more) pervasive
than the one governing junkyards in Burger — so we agree with the
district court that reasonable officials in defendants' shoes
could believe that the AEM industry qualifies as closely regulated,
at least at the time they acted.
15 Opinions of a state's intermediate appellate court can be
persuasive authority for interpreting state law. See, e.g.,
Candelario del Moral v. UBS Fin. Servs. Inc. of P.R., 699 F.3d 93,
102 (1st Cir. 2012).
- 25 -
Faced with this concatenation of circumstances,
plaintiffs offer a creative argument. Stripped to its bare
essence, they contend that tightly-regulated businesses are only
those businesses that deal with devices that could endanger lives
(e.g., guns) or that can serve as a fence for stolen goods (e.g.,
auto junkyards). And, they add, AEMs fit neither category. But
they cite no authority for this limiting proposition — probably
because businesses identified as closely regulated when defendants
acted include those that are not inherently dangerous to persons
(like, for example, auto junkyards) and that do not function as
fences for thieves (like, for instance, daycares). That is a very
big deal, because plaintiffs had the burden of showing that clearly
established law when defendants searched the AEMs (in 2010) put
reasonable officials on notice that AEMs were not closely
regulated, see McGrath, 757 F.3d at 29 — a burden plaintiffs
obviously have not come close to satisfying, as we just noted.16
16 Plaintiffs' argument may have more traction given the Court's
Patel decision. See Patel, 2015 WL 2473445, at *10 & n.5
(explaining that "[h]otels — like practically all commercial
premises or services — can be put to use for nefarious ends," and
adding that "unlike the industries that the Court has found to be
closely regulated, hotels are not intrinsically dangerous"). But
recall that Patel had not yet been decided.
- 26 -
(d)
State Interest
Plaintiffs cite zero cases showing that reasonable
officials in defendants' position would have believed that the
regulatory scheme serves no substantial government interest. This
is hardly a surprise given how then-existing caselaw (i.e., caselaw
as of 2010) stressed that the commonwealth's "interest in the
health, safety, and welfare of its citizens constitutes a
substantial governmental interest"17 and that regulating gambling
"lies at the heart of the state's police power" to further
important goals like protecting "the health, welfare, safety, and
morals of its citizens."18 Together these cases suggest (as the
district court implicitly found) that reasonable persons in
defendants' boots could have concluded the commonwealth has a
significant interest in stopping persons from converting legal
17Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328,
341 (1986) (internal quotation marks omitted); see also United
States v. Edge Broad. Co., 509 U.S. 418, 426 (1993).
18Johnson v. Collins Entm't Co., 199 F.3d 710, 720 (4th Cir. 1999);
see also Ah Sin v. Wittman, 198 U.S. 500, 505–06 (1905) (explaining
that "[t]he suppression of gambling is concededly within the police
powers of a state"); Crutcher v. Commonwealth, 141 U.S. 47, 61
(1891) (emphasizing that the state's police power "extends to . . .
the prohibition of lotteries, gambling, [and] horse-racing").
- 27 -
AEMs into illegal gambling machines, thereby keeping citizens from
becoming gambling addicts.19
(e)
Interest Advancement
Plaintiffs also do not say how reasonable officials — in
the circumstances confronted by each defendant and given the law
as of 2010 — would have reasonably thought that warrantless
inspections do not advance the just-described state interest.
Maybe this is because the law books are chock-full of cases
stressing how "surprise is an important component of an efficacious
inspection regime." Maldonado, 356 F.3d at 135; accord Gonsalves,
435 F.3d at 68. Just look at Biswell, a case the district court
relied on. The statute there required all licensed gun dealers to
keep certain records. It also let officials enter the dealers'
premises — without a warrant — to examine not only the records but
also any firearms kept on the premises. See 406 U.S. at 312 n.1.
And when all was said and done, the Court held that inspections
could not "assure[] that weapons are distributed through regular
channels and in a traceable manner and make[] possible the
prevention of sales to undesirable customers and the detection of
the origin of particular firearms" if inspectors had to schedule
19Converting legal machines into illegal ones is not hard to do,
apparently.
- 28 -
inspections in advance or conduct them only with warrants. Id. at
315-16; see also Dewey, 452 U.S. at 603 (highlighting Congress's
conclusion that given "the notorious ease with which many safety
or health hazards may be concealed if advance warning of inspection
is obtained, a warrant requirement would seriously undercut this
Act's objectives"). But again, plaintiffs put up no serious fight
on whether the state's interest justifies warrantless inspections.
(f)
Warrant Substitute
Instead plaintiffs spend much energy emphasizing how (in
their opinion) the last Burger requirement — that the scheme serve
as a warrant equivalent — is not satisfied because neither the
statutes nor the regulations limit the timing and scope of the
agents' activities. Cf. 482 U.S. at 703 (holding that to be an
adequate substitute for a warrant, the scheme "must perform the
two basic functions of a warrant" — let owners know that the
inspections are made pursuant to law, and be "carefully limited in
time, place, and scope" (internal quotation marks omitted)). As
a result, they add, agents can barge into establishments, break
AEMs' locks, and inspect the machines whenever and however they
please. Not so, defendants insist. The scheme, they say, cabins
the agents' discretion because (to quote their brief) it tells AEM
- 29 -
owners "that the business is subject to inspection and who will
conduct the same."20
Dealing with timing issues can be tricky business.
Courts have okayed schemes limiting inspections to "regular and
usual business hours," see Burger, 482 U.S. at 711, "all reasonable
times," see Biswell, 406 U.S. at 312 n.1, and "all reasonable
hours," see Gonsalves, 435 F.3d at 68. Our litigants direct us to
no statutory or regulatory language like that here. And we see
none.
Still, a regime may pass the Burger test even if there
are no time limits — context is key, with precedent out there in
2010 okaying schemes with no timing limits if such limits would
make inspections unworkable. See, e.g., United States v. Ponce-
Aldona, 579 F.3d 1218, 1225-26 (11th Cir. 2009) (upholding a
regulatory regime authorizing inspections of commercial trucks
with no time restrictions — finding "[t]ime restrictions are not
feasible because trucks operate twenty-four hours a day," noting
"[i]f inspections were limited to daylight hours," for instance,
trucks trying "to avoid inspection could simply travel at night,"
and collecting loads of additional cases). What matters then is
whether the problems that triggered the AEM regulations are limited
20Best we can tell, the parties argue — as they did in district
court — only over time and scope, not place.
- 30 -
to certain hours, like business hours. See, e.g., United States
v. Dominguez–Prieto, 923 F.2d 464, 470 (6th Cir. 1991) (noting
"limitation [on searches of commercial carriers] would . . . render
the entire inspection scheme unworkable and meaningless").
The difficulty here, however, is that the district court
was silent on the timing issue. Ditto for defendants. As for
plaintiffs, they insist the regime has no time limits. But like
defendants, they say nothing about whether timing restrictions
would or would not make the inspection regime unworkable. And the
district court said nothing about this issue as well. These
omissions are significant because an answer on the timing question
is critical for resolving either step in the qualified immunity
analysis — i.e., whether defendants violated plaintiffs'
constitutional rights, and, if so, whether those rights were
clearly established at the time of the incident; again, if
plaintiffs satisfy both steps of the qualified-immunity inquiry,
then they can defeat that defense.
Similar problems plague the ever-so important scope
issue. Ever-so important, because a valid inspection regime
requires "certainty and regularity" of application. Burger, 482
U.S. at 703. And if the regime offers no rules governing the
procedure that agents must follow, "the Fourth Amendment and its
various restrictive rules apply," Colonnade Catering, 397 U.S. at
- 31 -
77. Examples of inspection schemes deemed sufficiently narrow in
scope when our defendants acted include:
 Colonnade Catering, where the statute let agents enter the
premises of liquor dealers "'for the purpose of examining'"
"'articles or objects subject to tax'" — though the high Court
stressed that the statute did not empower agents to forcibly
go into areas without a warrant but rather made it a criminal
offense not to let inspectors in. See 397 U.S. at 73 n.2, 77
(quoting 26 U.S.C. § 7606(a)).
 Biswell, where the statute let officials enter "'the
premises'" of gun dealers "'for the purpose of inspecting or
examining (1) any records or documents required to be kept
. . ., and (2) any firearms or ammunition kept or stored.'"
See 406 U.S. at 312 n.1 (quoting 18 U.S.C. § 923(g)).
 Burger, where the statute let agents "'examine'" the
"'records'" of junkyard operators "'and any vehicles or parts
of vehicles'" on the premises that "'are subject to the
[statute's] record keeping requirements.'" See 482 U.S. at
694 n.1 (quoting N.Y. Veh. & Traf. Law § 415-a5).
 And Gonsalves, where the statute let agents enter drug-
storage facilities "to determine whether 'any of the
provisions of this chapter are being violated,' and to 'secure
- 32 -
samples or specimens.'" See 435 F.3d at 36 (quoting R.I.
Gen. Laws § 21-31-21).
The problem in our case is that the district court did
not focus serious attention on the scope issue, even though it is
— like timing — an essential consideration in deciding either step
in the qualified-immunity analysis. Yes, as defendants note, the
regime tells AEM owners that agents can inspect licenses and other
records. See P.R. Treas. Reg. 7437, arts. 2040, 2044-1 (certified
English translation, at 4, 23). And yes, as defendants also note,
the regime tells persons that agents can inspect "assets" tied to
activities subject to taxation under a provision of the
commonwealth's internal revenue code. See 13 L.P.R.A. § 8140(a).
But defendants point to nothing — no statute, regulation, or rule
— that explains either how agents can open AEMs or how they can
and should go about inspecting them once opened.21 And if no such
provision exists, the commonwealth's scheme fails to furnish even
the minimal specificity needed to let an AEM owner know that "the
inspections to which he is subject do not constitute discretionary
acts by a government official." Burger, 482 U.S. at 711.
(g)
Our Solution
21 One would expect some analysis on this point, given how
plaintiffs claim the procedure defendants used here greatly
damaged the AEMs.
- 33 -
Given these serious gaps in the record and the parties'
briefs, it makes perfect sense to remand the case so the district
court can (with counsel's help) work on these all-important timing
and scope matters in the qualified-immunity context — a tack taken
by other circuits in similar circumstances, by the way. See, e.g.,
Kerns, 663 F.3d at 1182 (citing and quoting Distiso v. Town of
Wolcott, 352 Fed. App'x 478, 482 (2d Cir. 2009) (unpublished)).
This approach will let the "adversarial process . . . work through
the problem," resulting in a "considered" lower court decision —
a decision that will, importantly, reduce "the risk of an
improvident governing appellate decision" from us. Id.22 And —
not willing to make uncertain assumptions about the law — we are
doubly persuaded that this is the right course, given how complex
the issues are and how the parties' briefs missed some of the legal
nuances presented by this case.23 See Kerns, 663 F.3d at 1181-82.
22Cf. generally Clifford v. M/V Islander, 751 F.2d 1, 9 n.4 (1st
Cir. 1984) (reversing and remanding, in part, and explaining that
"[w]ithout the benefit of any district court . . . discussion" on
certain legal "matters, it would be idle for us to comment further
about them").
23Puerto Rico's appeals court said the Games of Chance Act neither
"authorize[s] . . . searches at any time of the day or night" nor
"inspections outside of working hours." See Federación Operadores
de Máquinas de Entretenimiento, Inc., 2010 WL 4792673, Civ. No.
KLCE201000987 (certified English translation, slip op. at 22-23).
That may be, but the appeals court did not back up the point with
any legal analysis. See id. And that counsels a remand to the
- 34 -
In remanding to get the district court's thoughts on the
crucial timing and scope issues, we offer this reminder: To defeat
a qualified-immunity defense here, plaintiffs must show that
defendants violated their Fourth Amendment rights and that those
rights were clearly established at the time. See, e.g., Sheehan,
135 S. Ct. at 1774. Repeating what we said earlier, courts may
(and sometimes should) decide qualified-immunity claims based
solely on the second step — holding that the contours of the right
were not clearly established, without deciding whether there was
a constitutional violation. See, e.g., Pearson, 555 U.S. at 236.
If the district court goes that route, both the court and the
parties should be ever mindful that the qualified-immunity inquiry
is highly context-specific, turning on whether it would be clear
to reasonable officers in defendants' positions that their actions
violated the Fourth Amendment, see, e.g., Rocket Learning, Inc.,
715 F.3d at 10, and that defendants' positions run the gamut from
policymakers to advisors to supervisors to implementers. We also
leave it to the court on remand to resolve codefendants Gadea-
Rivera, Diez de Andino, Vescovacci-Nazario, and Flores-Cortés's
argument that they had no personal involvement in any alleged
constitutional violation, as required by section 1983.
district court so that we can get a fuller picture of what Puerto
Rico law says. See Kearns, 663 F.3d at 1181-82.
- 35 -
So a vacate and remand on this claim it is — but before
we shift our focus to plaintiffs' next claim, we wish to make one
thing crystal clear: although Patel does not apply in this case
(because of the qualified-immunity overlay), we note that the law
governing administrative searches continues to develop and that
the bench and bar must be on the look for situations where Patel
does hold sway.
Due-Process Claim
Plaintiffs believe defendants violated their federal
due-process rights by not giving them hearings before seizing the
AEMs. Again asserting qualified immunity, defendants counter that
they had to act quickly — because the AEMs "appeared to be
operating illegally" — and that meaningful postdeprivation
remedies are all the process that is due.
We begin with the basics. Normally due process requires
notice and a hearing of some sort before the government takes away
property — the state, in other words, usually must say what it
intends to do and then give affected persons the chance to speak
out against it. See, e.g., Zinermon v. Burch, 494 U.S. 113, 132
(1990); S. Commons Condo. Ass'n v. Charlie Arment Trucking, Inc.,
775 F.3d 82, 85-86 (1st Cir. 2014). "Normally" and "usually" are
words that suggest exceptions. And that is the case in this corner
of the law, because due process is a "flexible" concept not
- 36 -
governed by any "[r]igid taxonomy." See respectively Morrissey v.
Brewer, 408 U.S. 471, 481 (1972); González-Droz v. González-Colón,
660 F.3d 1, 13 (1st Cir. 2011); see also Cafeteria & Rest. Workers
Union v. McElroy, 367 U.S. 886, 895 (1961); San Gerónimo Caribe
Project, Inc. v. Acevedo–Vilá, 687 F.3d 465, 488 (1st Cir. 2012)
(en banc); Elena v. Municipality of San Juan, 677 F.3d 1, 9 (1st
Cir. 2012). As a for-instance, one exception (the one defendants
rely on) is that the state need not give preseizure process if
(a) doing so would defeat the point of the seizure — like when the
property could be moved, concealed, or destroyed if advance notice
is given — and (b) there is adequate postseizure process. See
Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 679-80
(1974); see also Zinermon, 494 U.S. at 132; Mathews v. Eldridge,
424 U.S. 319, 335 (1976); S. Commons Condo. Ass'n, 775 F.3d at 86.
Plaintiffs' right to preseizure process — an issue on
which they bear the burden, see, e.g., Aponte-Torres v. Univ. of
P.R., 445 F.3d 50, 56 (1st Cir. 2006) — turns on whether the pined-
for process is a reasonable requirement to impose. And that
requires comparing the benefit of the procedural protection sought
— which involves the value of the property interest at issue and
the probability of mistaken deprivations if the protection is not
provided — with the cost of the protection; this is known in legal
circles as the Mathews test. See, e.g., United States v. James
- 37 -
Daniel Good Real Prop., 510 U.S. 43, 53 (1993) (discussing
Mathews); Clukey v. Town of Camden, 717 F.3d 52, 59-60 (1st Cir.
2013) (ditto). Dooming plaintiffs' due-process claim is their
failure to say anything on this all-important test, giving us zero
case analysis to help us see how this benefit/cost comparison would
shake out. What they have done is not the type of serious effort
needed on a complex issue — especially when their briefs present
a slew of other legally intricate claims. And we will not do their
work for them. See, e.g., United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990). So their complaint about not getting
preseizure process is waived. See, e.g., Rodríguez v. Municipality
of San Juan, 659 F.3d 168, 175-76 (1st Cir. 2011).
Ever persistent, plaintiffs have a fallback position:
even if the postseizure remedy they invoked (challenging the
seizures in commonwealth court) is all the process due them, the
AEMs' poor condition (missing games, torn cables, etc.) has left
them unable to prove the AEMs' legality — meaning (the theory goes)
that defendants robbed them of their due-process rights.
Plaintiffs' argument goes nowhere, and fast, because they point us
to no competent evidence (like an affidavit) showing that the AEMs'
condition has kept (or will keep) them from having meaningful
postseizure hearings — a foundation-less allegation in their brief
certainly is not evidence. See, e.g., Tropigas de P.R., Inc. v.
- 38 -
Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st
Cir. 2011) (making clear that "we afford no evidentiary weight to
'conclusory allegations, empty rhetoric, [or] unsupported
speculation, or evidence'" (quoting Rogan v. City of Boston, 267
F.3d 24, 27 (1st Cir. 2001))); see also generally Kelly v. United
States, 924 F.2d 355, 357 (1st Cir. 1991) (pointing out that
"[r]hetoric, unsupported by facts, remains only rhetoric, even if
stridently proclaimed"). To move beyond summary judgment on this
fallback theory, plaintiffs had to back up their allegation with
evidence that creates a material dispute requiring trial. But all
they have given us is an allegation, which (again) does not cut
it. See, e.g., Tropigas de P.R., Inc., 637 F.3d at 56.
Please take note, though: we are deeply (repeat, deeply)
troubled by the damage done to the confiscated machines. And the
parties should know that we might have reached a different
conclusion on the due-process question if plaintiffs had not waived
the argument by failing to develop it.
Equal-Protection Claim
We turn then to plaintiffs' equal-protection claim,
which in essence is this: Puig-Morales fined them but not the
establishment owners over the illegal AEMs, the intention being to
punish plaintiffs for opposing the installation of video-lottery
terminals, his pet project — a plain-as-day equal-protection
- 39 -
violation, plaintiffs conclude. Defendants fight tooth and nail
against this argument, spending a good deal of time trying to
persuade us that the AEM owners and the establishment owners aren't
sufficiently similar to require equal treatment.
All agree that equal-protection principles require
government actors to treat like persons alike. See, e.g., Aponte-
Ramos v. Álvarez-Rubio, 783 F.3d 905, 908 (1st Cir. 2015). All
agree that — given the equal-protection theory they have picked —
to get past summary judgment, plaintiffs must show selective
treatment "compared with others similarly situated . . . based on
impermissible considerations," like "intent to inhibit or punish
the exercise of constitutional rights, or malicious or bad faith
intent to injure a person." Rubinovitz v. Rogato, 60 F.3d 906,
909–10 (1st Cir. 1995) (quoting Yerardi's Moody St. Rest. & Lounge
v. Bd. of Selectman, 878 F.2d 16, 21 (1st Cir. 1989)); see also
Aponte-Ramos, 783 F.3d at 908; Barrington Cove Ltd. P'ship v. R.I.
Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001). And all
agree that to carry their burden on the similarly-situated front,
"plaintiffs must show an extremely high degree of similarity
between themselves and the persons to whom they compare
themselves." Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir.
2007) (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159 (2d
Cir. 2006)). A precise correlation is not necessary, though
- 40 -
plaintiffs must muster "sufficient proof on the relevant aspects
of the comparison to warrant a reasonable inference of substantial
similarity." Id. (adding that while "normally" the similarly-
situated determination is "grist for the jury's mill," a judge can
dispose of an equal-protection claim via summary judgment if
plaintiffs fail to shoulder their burden on this critical issue).
Plaintiffs stumble on the substantial-similarity
requirement — i.e., that they show a satisfactory comparator who
was similarly situated and yet treated differently. The pivot-
point of their argument is the idea that Puig-Morales acted
maliciously by fining them as punishment for not backing his pet
project.24 Given their theory, and keeping in mind that a
comparator must be similarly situated in "all relevant respects,"
id. at 251, the appropriate similarly-situated pool must be
composed of people who should have been fined for the (supposedly)
illegal AEMs (with the different treatment being leniency for those
who didn't oppose the project, plaintiffs argue — at least
24 A quick aside: Plaintiffs' equal-protection argument comes
dangerously close to being a mere rehash of the speech-retaliation
claim (which we discuss in a minute). And we remind the bench and
bar that an equal-protection claim that merely restates a First-
Amendment claim should be considered under the First Amendment.
See, e.g., Aponte-Ramos, 783 F.3d at 908 n.4; Uphoff Figueroa v.
Alejandro, 597 F.3d 423, 430 n.8 (1st Cir. 2010).
- 41 -
implicitly). As for their suggestion that the establishment owners
populate the similarly-situated pool, we see a serious problem:
Plaintiffs never develop the legal basis for concluding
that Puig-Morales could have fined the establishment owners. As
we mentioned many pages ago, a Puerto Rico statute provides that
"[t]he Secretary shall impose an administrative fine on the owner
of not less than five thousand dollars ($5,000) nor more than ten
thousand dollars ($10,000) for each violation" of the Games of
Chance Act.25 15 L.P.R.A. § 84a(a). "Secretary" means the Treasury
secretary. 15 L.P.R.A. § 82a(c). And "[o]wner" means the "person
who owns the adult entertainment machine." 15 L.P.R.A. § 82a(f).
Not a word in section 84a(a) says that the secretary can fine
establishment owners.26 And plaintiffs never stop to confront this
provision — they never explain, for example, how the secretary can
fine establishment owners in the face of that section.27 Litigants
25Puig-Morales clearly alluded to this section at his deposition
when he explained how he had told agents to fine AEM owners "five
thousand dollars, per machine," which, he added, is "the lesser
amount."
26Again, for all intents and purposes, plaintiffs treat AEM owners
and establishment owners as mutually exclusive groups.
27 A different provision of the Games of Chance Act — section
84a(b)(1) — talks about fines for "[e]very" AEM owner "or any other
person, operator, or attendant in a business or establishment"
convicted of introducing illegal machines. The fines range from
$200 to $400 for the first conviction, and $300 to $500 for the
second. "[P]erson[s]" convicted of other offenses under the act
"shall" be fined too, with the maximum "fixed penalty" being
- 42 -
should know by now that it is not for us "to create arguments for
someone who has not made them" or even "to assemble them from
assorted hints and references scattered throughout the brief."
Yeomalakis v. FDIC, 562 F.3d 56, 61 (1st Cir. 2009). Clearly then,
any argument tied to Puig-Morales's fining powers is waived. See,
e.g., Rodríguez, 659 F.3d at 175-76.
The upshot is that plaintiffs have not carried their
burden of proving substantial similarity. So their equal-
protection claim is a no-go.
Speech-Retaliation Claim
That takes us to Rivera-Corraliza's claim that
defendants seized PJ Entertainment's AEMs as payback for his
speaking out about Puig-Morales's vendetta against AEM owners. To
get anywhere he of course must show that his exercise of
constitutionally-protected speech was a "substantial" or
"motivating factor" behind defendants' actions. See González-
Droz, 660 F.3d at 16. "[C]lose" temporal proximity between a
plaintiff's protected activity and the state's retaliatory conduct
can "raise an inference of causation." See id. at 16-17. The key
word in that last sentence (at least so far as this case is
concerned) is "close." See id. at 17 (discussing caselaw holding
$1,000. See 15 L.P.R.A. § 84a(b)(3). Plaintiffs develop no
argument based on these provisions.
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a several month's gap between protected speech and supposedly
retaliatory conduct insufficient to prove causation).
Rivera-Corraliza thinks close proximity exists here,
saying in his opening brief that he continued calling Puig-Morales
out in the press through "the beginning of 2010" — and, remember,
defendants started grabbing PJ Entertainment's AEMs in February
2010. But Rivera-Corraliza does not identify any record facts to
support his (completely conclusory) proximity assertion.
Basically he invites us either to treat what he says as true or to
comb the record without his help to confirm his story. We decline
the invitation. See Rodríguez–Machado v. Shinseki, 700 F.3d 48,
50 (1st Cir. 2012) (per curiam) (reminding everyone that we
appellate "[j]udges are not like pigs, hunting for truffles buried
in" the record (alteration in original) (internal quotation marks
omitted)). His claim is therefore waived. See, e.g., Metro. Prop.
& Cas. Ins. Co. v. Shan Trac, Inc., 324 F.3d 20, 26 (1st Cir. 2003)
(citing Zannino, 895 F.2d at 17).
Local-Law Claims
One last issue. Because we vacate the entry of summary
judgment on the search-and-seizure claim and remand for
proceedings in line with this opinion, the district court should
reinstate the local-law claims. See Rodríguez, 659 F.3d at 181-
82 (1st Cir. 2011). If the court again jettisons the search-and-
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seizure claim before trial, it of course can reassess whether to
keep jurisdiction over the local-law claims. See id. at 182.
Final Words
For the reasons recorded above, we vacate the summary
judgment on the search-and-seizure and local-law claims and remand
for proceedings consistent with what we have said. We affirm in
all other respects.
No costs to either side.
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