On Wednesday, March 22, the eight-justice court will hear argument in County of Los Angeles v. Mendez, a Fourth Amendment civil action filed by two people shot by Los Angeles County sheriffs deputies. If Judge Neil Gorsuch is confirmed in April as Senate Majority Leader Mitch McConnell has promised, this will be one of the last eight-justice arguments in the year since the death of Justice Antonin Scalia. This is a case in which a ninth justice could matter, as well as one for which Scalia will be missed, as he had strong Fourth Amendment views.
While looking for a missing parolee, two sheriffs deputies opened the door of an occupied shack without a warrant and without knocking or announcing. When Angel Mendez moved a BB gun to respond, the deputies immediately shot him and his pregnant companion. Both were awarded $4 million after a bench trial (Mendezs leg was amputated below the knee; his companion delivered a healthy baby).
Like many Fourth Amendment cases, this one involves detailed and nuanced facts that can generate limitless hypotheticals. Legally, it presents interesting questions about proximate cause as well as about what law is clearly established for official-immunity purposes. There appears to be some analytical confusion in the briefing, which mixes together these very different concepts. And a preliminary ruling of the U.S. Court of Appeals for the 9th Circuit that the knock and announce rule was not clearly established for separate searches of curtilage areas after an earlier announcement has been made may conflict with that courts denial of official immunity for the later shooting. (Recall that under the doctrine of qualified immunity, an officer is not liable for damaging conduct if the law was not clearly established at the time that the officers conduct constituted a constitutional violation.)
The court granted review in this case primarily to consider a provocation theory of Fourth Amendment liability used by the 9th Circuit, which other courts of appeal have either rejected or applied differently. In an opinion written by then-Judge Samuel Alito ten years before he joined the Supreme Court, the U.S. Court of Appeals for the 3rd Circuit criticized a broad version of the 9th Circuits provocation theory, and Alito noted two terms ago in City and County of San Francisco v. Sheehan that the theory has been sharply questioned. A broadly stated provocation doctrine may therefore be on the way out. But whether the Mendezes damages award can survive on a more traditional proximate cause ground presents a more difficult question that seems likely to divide the court.
Compelling (if still somewhat disputed) facts
The Mendezes, a homeless couple who married after the shooting, present undoubtedly sympathetic facts. Because Fourth Amendment cases must be evaluated on a totality of the circumstances basis, factual nuances can make a difference. Here is my best distillation (based on detailed findings made by the district judge after a five-day bench trial):
In October 2010, officers were searching for a parolee-at-large who allegedly had been spotted bicycling in front of a suspected drug-trafficking house in suburban Los Angeles. Officers, who had no warrant to search or arrest, went to the house, announced themselves to the owner, and gained entry by threatening to force their way in. (The parolee was not there.)
Meanwhile, officers Christopher Conley and Jennifer Pederson went to clear the backyard. After entering the yard and checking some small metal storage boxes, the two officers came to a dilapidated wooden shack that (as the district court found) they could not reasonably have believed to be unoccupied. The shack had various signs of occupancy, and a lead officer testified that he had advised the deputies that a man named Angel lived in a shed in the yard with his pregnant girlfriend. (The district judge found that both deputies had heard this advisement, and that if they had not then they had unreasonably failed to pay attention.) With his gun drawn, Conley pulled open the door of the shack.
The Mendezes were resting on a futon; Angel kept a BB gun next to his bed to shoot pests. When he heard the deputies entry, he picked up the BB gun to move it so he could get up. (Whether the gun was pointed at the deputies remains disputed, but the trial judge found Mendez was moving it innocently, merely to help him sit up.) Conley shouted gun, and the deputies fired 15 bullets at the two occupants. Mendez, severely injured, exclaimed, I didnt know it was you guys. It was a BB gun.
The rulings below
The rulings of the trial and appeals courts present a somewhat complicated web of doctrine. The Mendezes filed a civil rights suit against Los Angeles County and the two deputies, alleging three Fourth Amendment violations: entry without a warrant, entry without knock and announce, and excessive force. The trial judge found for the Mendezes on all counts. However, the court awarded only nominal $1 damages for the warrantless entry and knock-and-announce violations, and also concluded that at the moment of shooting the deputies use of deadly force was objectively reasonable because they reasonably believed a man was holding a firearm rifle threatening their lives. Still, the court concluded, the county was liable because the deputies had recklessly provoke[d] a violent confrontation by not having a search warrant and by not knocking and announcing, and had thus creat[ed] the situation which caused the injuries.
Applying this provocation theory, which has been followed in the 9th Circuit since at least 2002, the 9th Circuit affirmed the damages award. Significantly, however, the court of appeals first ruled that although entering the shack without a search warrant was a clearly established Fourth Amendment violation, the deputies failure to knock and announce was not, because it was not clearly established that a law enforcement team that has announced itself at the front door of a house must then re-announce before entering a separate residence on the curtilage.
The 9th Circuit affirmed the damages award on two theories. First, the court of appeals applied its provocation precedents to hold that the deputies had creat[ed] a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable. In the view of the court of appeals, the clearly established Fourth Amendment violation of entering without a warrant necessarily indicates that the deputies acted recklessly or intentionally.
Second, the court concluded that even without relying on our circuits provocation theory, basic notions of proximate cause supported the judgment. The court noted a point made by the district judge: that because homeowners have a constitutional right to possess a firearm for protection, it is reasonably foreseeable that a startling entry into a bedroom will result in tragedy. (Justice Robert Jackson, joined by Justice Felix Frankfurter, made the same point in a concurrence some seven decades ago, a detail likely come up next Wednesday.) Thus, said the 9th Circuit, the deputies are liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force.
The county/deputies arguments
A threshold procedural issue crops up here: Although the county and the deputies presented three questions in their petition for certiorari, their merits brief (and the solicitor generals friend of the court brief filed in their support) now lists only two questions. The original questions had not expressly asked for review of proximate cause, but their restated second question now explicitly does. The court has previously expressed displeasure with parties altering the questions presented when they get to the merits stage, and the Mendezes now argue that the proximate cause question is not squarely before the court. This may attract some attention at oral argument, although the objective of reviewing the 9th Circuits provocation theory is likely paramount.
On to the merits. At bottom, the countys argument is simple: The courts 1989 opinion in Graham v. Connor said that a Fourth Amendment excessive force claim should be objectively evaluated at the moment of the application of force. Here, the lower courts have concluded that at the moment the deputies fired, their reaction to a raised rifle was objectively reasonable. Although its reply brief backs off a little, the county argues that the officers actions before [the shooting] are not relevant.
The Mendezes respond that, in fact, the court has suggested (in a different Fourth Amendment context, Kentucky v. King) that the conduct of the police preceding the exigency must be considered; only if the police did not create the exigency by violating the Fourth Amendment is their conduct reasonable. The Mendezes read the courts prior excessive-force decisions not as finding such conduct irrelevant, but rather as examining the conduct to determine whether it is factually unpersuasive on the particular record presented. (It might also be argued that the courts at the moment phrase in Graham was dictum rather than essential to its holding.)
These arguments will set the stage for the court to examine, and ultimately to either define or reject, a Fourth Amendment provocation theory of law enforcement liability. Certainly the court will narrow the theorys confines, if not reject the label entirely. But after reams of briefing, and a likely (almost perfunctory) rejection of the 9th Circuits prior broad statements, provocation will probably not be the ultimate focus of the courts attention in this case.
Instead, the crux of the argument is now likely to shift to considering the deputies liability as simple question of proximate cause. And here, I think there is analytical confusion. Simply put, causation is a very different question from qualified immunity.
Cutting through many pages of briefing, the countys key argument is that the deputies failure to knock and announce cannot be considered in determining their liability for damages, because the 9th Circuit held that it was not a clearly established violation on the specific facts presented. If that legal factor is omitted, then it is difficult to say that shooting here was a foreseeable result of the failure to secure a search warrant. That is, even if the deputies had had a warrant in their back pockets, the same scenario would have resulted. It was the failure to knock and announce, not the failure to get a warrant, that led to the shooting here.
Causation, however, is a fact-dependent inquiry, requiring consideration of the totality of the circumstances, as the court has often noted. Such factual analysis does not allow for ignoring facts that are actually present; and it is analytically quite separate from the legal question of qualified immunity. The mash-up of the two concepts is perhaps best displayed in the solicitor generals brief, in which the argument that the deputies did not proximately cause Mendezs injuries concludes by saying that it was not clearly established that the officers had to knock and announce in this situation. The latter assertion may be true; it might even preclude liability. But that legal conclusion does not eliminate the fact of the failure to knock and announce a fact that, as all parties and the lower courts seem to agree, led directly to Angel Mendezs reaction and the deputies shooting.
Thus, while it seems unarguable that the failure to knock and announce led to Mendezs innocent reaction, as well as to the deputies equally understandable fear and decision to shoot, establishing causation is not the same as establishing a violation of clearly established law. The factual concept of causation (present here) must be separated from the very different legal concept of a clearly established Fourth Amendment violation (perhaps not present here).
Conclusion
This case presents many different points of entry for questioning at oral argument. If the justices are willing to go beyond consideration of the provocation theory, I would expect an extremely active free-for-all of questioning. But given Justice Alitos repeatedly expressed skepticism towards a broad reading of the 9th Circuits provocation doctrine, such a reading seems likely to be rejected here.
Nevertheless, the Mendezes brief effectively defends the commonsense view that the deputies failure to knock and announce their warrantless search caused the violence that followed. The countys arguments that the deputies actions did not constitute proximate cause, or that Mendezs innocent response to unknown intruders should be held to be a superseding event, seem stretched. On proximate cause, the justices seem likely to be divided. Indeed, once the provocation theory is disposed of, the eight-justice court might find it easier to remand for reconsideration under the clearer standards that its opinion will announce.
But its a bit premature to predict the result before the oral argument. At bottom, this is a qualified-immunity case, not one of simple Fourth Amendment violation or causation. Or, as the countys effective (if at times hyperbolic) brief concludes, rather than a reckless shooting, this might be described as a tragic confluence of reasonable misperceptions on both sides. By holding that the failure to knock and announce was not a clearly established violation of the Fourth Amendment, the 9th Circuit undercut its later finding of damages liability against the county. Well see if the justices are able to untangle these two ideas causation versus qualified immunity at oral argument next Wednesday.
Posted in County of Los Angeles v. Mendez, Featured, Merits Cases
Recommended Citation: Rory Little, Argument preview: Mixing concepts of causation, provocation and qualified immunity in the Fourth Amendment context, SCOTUSblog (Mar. 15, 2017, 10:38 AM), http://www.scotusblog.com/2017/03/argument-preview-mixing-concepts-causation-provocation-qualified-immunity-fourth-amendment-context/
Continue reading here:
Argument preview: Mixing concepts of causation, provocation and qualified immunity in the Fourth Amendment context - SCOTUSblog (blog)
- Protections for e-data clear Senate committee [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Fourth amendment | Wex Legal Dictionary / Encyclopedia ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Fourth Amendment to the United States Constitution ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Court may let cops search smartphones [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Supreme Court to hear case on police searches of cellphones [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- What Scalia knows about illegal searches [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- Should police be allowed to search your smartphone - Video [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- Fourth Amendment to the United States Constitution - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Rand Paul Third Party Records Should Get Fourth Amendment Protection O'Reilly Factor 6 11 2013 - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- The Shaky Legal Foundation of NSA Surveillance on Americans [Last Updated On: May 2nd, 2014] [Originally Added On: May 2nd, 2014]
- Pennsylvania Supreme Court rules police don't need warrants to search cars [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Local police: Updated vehicle-search law still requires probable cause [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Liberal Supreme Court Justice Comes To The Defense Of Scalia [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Gerald Celente - Trends In The News - America's Spiritual Death - (1/20/14) - Video [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- Smartphones and the Fourth Amendment - Video [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- Fourth Amendment Searches And Seizures - Video [Last Updated On: May 5th, 2014] [Originally Added On: May 5th, 2014]
- Fourth Amendment Defined & Explained - Law [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Enforcement Techniques For Violations Of The Fourth Amendment - Video [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- I-Team: Do police seek search warrant friendly judges? [Last Updated On: May 7th, 2014] [Originally Added On: May 7th, 2014]
- Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video [Last Updated On: May 9th, 2014] [Originally Added On: May 9th, 2014]
- It Costs Less to Care [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- The Fourth Amendment - Video [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- Magistrate waxes poetic while rejecting Gmail search request [Last Updated On: May 11th, 2014] [Originally Added On: May 11th, 2014]
- License reader lawsuit can be heard, appeals court rules [Last Updated On: May 15th, 2014] [Originally Added On: May 15th, 2014]
- Seize the Rojo - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- NSA Spying Has a Disproportionate Effect on Immigrants [Last Updated On: May 17th, 2014] [Originally Added On: May 17th, 2014]
- Motorists sue Aurora, police in 2012 traffic stop after bank robbery [Last Updated On: May 17th, 2014] [Originally Added On: May 17th, 2014]
- Judge Says NSA Phone Surveillance Likely Unconstitutional - Video [Last Updated On: May 21st, 2014] [Originally Added On: May 21st, 2014]
- New York Attorney Heath D. Harte Releases a Statement on Fourth Amendment Rights [Last Updated On: May 22nd, 2014] [Originally Added On: May 22nd, 2014]
- Bangor Area School District teachers vote no to random drug [Last Updated On: May 24th, 2014] [Originally Added On: May 24th, 2014]
- The Fourth Amendment Rights - Video [Last Updated On: May 24th, 2014] [Originally Added On: May 24th, 2014]
- I Don't Care About The Contitution, Take Your Fourth Amendment And Shove It The Hills Hotel - Video [Last Updated On: May 27th, 2014] [Originally Added On: May 27th, 2014]
- Lonestar1776 at Illegal Checkpoint 80 Miles Inside Border - Standing UP & Pushing Back! pt 2/2 - Video [Last Updated On: September 1st, 2014] [Originally Added On: September 1st, 2014]
- Suit charges Daytona Beach's rental inspection program violates civil rights [Last Updated On: September 2nd, 2014] [Originally Added On: September 2nd, 2014]
- 4th Amendment - Laws.com [Last Updated On: September 6th, 2014] [Originally Added On: September 6th, 2014]
- YOU CAN ARREST ME NOW (cops refuse) - Video [Last Updated On: September 6th, 2014] [Originally Added On: September 6th, 2014]
- The Feds Explain How They Seized The Silk Road Servers [Last Updated On: September 8th, 2014] [Originally Added On: September 8th, 2014]
- Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained [Last Updated On: September 9th, 2014] [Originally Added On: September 9th, 2014]
- Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA? [Last Updated On: September 9th, 2014] [Originally Added On: September 9th, 2014]
- Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting [Last Updated On: September 10th, 2014] [Originally Added On: September 10th, 2014]
- Minnesota Supreme Court upholds airport drug case decision [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule [Last Updated On: September 15th, 2014] [Originally Added On: September 15th, 2014]
- Guest: Why the privacy of a public employees cellphone matters [Last Updated On: September 16th, 2014] [Originally Added On: September 16th, 2014]
- Volokh Conspiracy: Apples dangerous game [Last Updated On: September 19th, 2014] [Originally Added On: September 19th, 2014]
- Judge expounds on privacy rights [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- The Fourth Amendment By Maison Erdman - Video [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids [Last Updated On: September 22nd, 2014] [Originally Added On: September 22nd, 2014]
- The chilling loophole that lets police stop, question and search you for no good reason [Last Updated On: September 23rd, 2014] [Originally Added On: September 23rd, 2014]
- E.O. 12333: End-Running the Fourth Amendment | The Dissenter [Last Updated On: September 25th, 2014] [Originally Added On: September 25th, 2014]
- Fourth Amendment: The History Behind "Unreasonable ... [Last Updated On: September 25th, 2014] [Originally Added On: September 25th, 2014]
- Pet Owners Look to Muzzle Police Who Shoot Dogs [Last Updated On: September 27th, 2014] [Originally Added On: September 27th, 2014]
- Volokh Conspiracy: A few thoughts on Heien v. North Carolina [Last Updated On: September 29th, 2014] [Originally Added On: September 29th, 2014]
- Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland [Last Updated On: October 1st, 2014] [Originally Added On: October 1st, 2014]
- Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule [Last Updated On: October 2nd, 2014] [Originally Added On: October 2nd, 2014]
- Volokh Conspiracy: Supreme Court takes case on duration of traffic stops [Last Updated On: October 2nd, 2014] [Originally Added On: October 2nd, 2014]
- Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ... [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Argument preview: How many brake lights need to be working on your car? [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- The 'Barney Fife Loophole' to the Fourth Amendment [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video [Last Updated On: October 5th, 2014] [Originally Added On: October 5th, 2014]
- Ap Government Fourth Amendment Project - Video [Last Updated On: October 5th, 2014] [Originally Added On: October 5th, 2014]
- Volokh Conspiracy: Oral argument in Heien v. North Carolina [Last Updated On: October 6th, 2014] [Originally Added On: October 6th, 2014]
- Feds Hacked Silk Road Without a Warrant? Perfectly Legal, Prosecutors Argue [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Supreme Court Starts Term with Fourth Amendment Case [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Argument analysis: A simple answer to a deceptively simple Fourth Amendment question? [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Leggett sides with civil liberties supporters [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Broken Lights And The Fourth Amendment National Constitution Center - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- The Fourth Amendment- The Maininator Period 4 - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid [Last Updated On: October 11th, 2014] [Originally Added On: October 11th, 2014]
- Montgomery County will not hold immigrants without probable cause -- Gazette.Net [Last Updated On: October 13th, 2014] [Originally Added On: October 13th, 2014]
- Debate: Does Mass Phone Data Collection Violate The 4th Amendment? [Last Updated On: October 15th, 2014] [Originally Added On: October 15th, 2014]
- Does the mass collection of phone records violate the Fourth Amendment? [Last Updated On: October 18th, 2014] [Originally Added On: October 18th, 2014]