Two Los Angeles Sheriff’s Department deputies are hearing — for the fourth time — they’ll be personally responsible for a string of Constitutional violations resulting in them filling two innocent people with bullets. At this point, the officers have lost at the district level, the Appeals Court, got a partial remand (but no grant of immunity) from the Supreme Court, and are back in front of the Ninth Circuit Court of Appeals losing again.
Deputies Christopher Conley and Jennifer Pederson were searching for a parolee named Ronnie O’Dell. A department briefing claimed O’Dell lived in a one-room shack behind a home owned by Paula Hughes. O’Dell did not live there. Instead, the deputies found — after entering the shack without announcing their presence or obtaining a warrant — Angel Mendez and Jennifer Garcia. Mendez, who had been sleeping on a futon, started to move a BB gun off the bed (the BB gun was used to shoot pests) and set it on the floor so he could stand up. Deputy Conley shouted “Gun!” and the rest — all fifteen bullets of it — is tragic history.
From the Ninth Circuit Appeals Court’s second pass [PDF] at this case:
Angel Mendez was shot approximately ten times and suffered severe injuries. He lost much of his leg below the knee, and he faces substantial ongoing medical expenses. Jennifer Lynn Garcia (now Jennifer Mendez) was shot in the upper back and left hand.
The district court found the deputies had violated clearly established rights — both with the warrantless entry and the use of force. The appeals court upheld this ruling, siding with the lower court’s interpretation of “provocation:” the legal theory that the deputies’ failure to “knock and announce” directly created the “dangerous” situation (Mendez awakening and trying to move his gun) that resulted in officers shooting Mendez and Garcia.
This was appealed and the Supreme Court trimmed back a bit of the Ninth Circuit’s Fourth Amendment jurisprudence. It ruled against the “provocation rule” instituted in the Ninth Circuit, finding no Constitutional precedent for this theory.
The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham.
In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation.
This doesn’t create more protections for officers. All it does is constrain the Ninth Circuit to existing QI precedent. The court can no longer rule the shooting was excessive because officers created the situation that resulted in shooting. But that’s not the same as saying the force was justified either. There’s more to this, and that’s in the Ninth Circuit’s second opinion.
On remand, the Ninth Circuit court reconsiders its take on the excessive force claim. Unfortunately for the deputies, this doesn’t mean they’ll escape liability. If anything, the direction from SCOTUS pushed the appeals court to add state law violations to the mix. The opinion is still as acidic the second time around.
The panel held, as it did in its earlier opinion Mendez v. County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016), that the officers violated the Fourth Amendment by entering plaintiffs’ home without a warrant, consent or exigent circumstances. The panel held that the officers’ unlawful entry, as distinct from the unlawful mode of entry, that is, the failure to knock and announce, for which the officers had qualified immunity, was the proximate cause of plaintiffs’ injuries. Moreover, the panel held that even if it were to treat the failure to get a warrant rather than the entry as the basis for the breach of duty, as the defendants suggested, the panel would still reach the same conclusion regarding proximate cause. The panel rejected defendants’ assertion that Mendez’s action of moving the gun so that it was pointed in their direction was a superseding cause of plaintiffs’ injuries. The panel held that if an officer has a duty not to enter in part because he or she might misperceive a victim’s innocent acts as a threat and respond with deadly force, then the victim’s innocent acts cannot be a superseding cause.
As is pointed out later in the opinion, there’s a goddamn good reason the Fourth Amendment should be respected by law enforcement officers. Refusing to do so makes things more dangerous for everyone — officers and citizens — even though it’s citizens paying with their health and lives for these violations far more frequently.
Important social interests are served by minimizing interactions between armed police officers on high alert and innocent persons in their homes, precisely because such interactions can foreseeably lead to tragic incidents where innocent people are injured or killed due to a split-second misunderstanding. One way the Constitution serves these interests is by adopting a rule that restricts officer entry into a residence except in certain limited circumstances. And it is obviously foreseeable that fewer tragic incidents like this one would occur under an enforced regime where officers will not enter homes without sufficient justification, as compared to one where officers enter without adequate justification. Especially where officers are armed and on alert, violent confrontations are foreseeable consequences of unlawful entries.
The other safety barrier between innocent people being gunned down by officers on high alert is the warrant requirement. These deputies didn’t get a warrant. Nor was it even possible for them to obtain one, unless they did so fraudulently. The court lays down some nasty verbal licks describing the lack of mere suspicion, much less probable cause, surrounding this unlawful search and deployment of force.
Here, the officers most likely lacked probable cause to believe that O’Dell was in a shed that was known, or reasonably should have been known, to belong to the Mendezes. As we noted in our prior decision in this case, “O’Dell was supposedly spotted riding a bicycle in front of Hughes’ house. Unless he was riding in circles, he would have passed the house long before the officers arrived. The original group of officers recognized this, as some of them went to another house to look for O’Dell.” Mendez, 815 F.3d at 1188 n.5. Under the circumstances the officers had no more reason to believe that O’Dell was on Hughes’ property than that he was on any other property reachable by bike within the time between the informant’s report and the arrival of the police. And although the officers came across a bike parked in front Hughes’ home, there was nothing to suggest that the bike was or resembled the bike O’Dell was riding. Seeing a bike after a suspect was seen riding a bike provides no more probable cause than seeing a car after a suspect was seen driving a car.
There’s nothing better waiting for the deputies’ “but he had a gun” argument:
[A]mong the reasons why the Fourth Amendment erects a barrier to entry is that an officer might, due to a mistaken assessment of a threat, harm a person inside the residence. Persons residing in a home may innocently hold kitchen knives, cell phones, toy guns, or even real ones that could be mistakenly believed by police to pose a threat. The possibility of misperceiving a threat is among the reasons why entry into a home by armed police officers with weapons drawn is dangerous. In such cases, the innocent acts of a homeowner in moving an ordinary item in an ordinary way cannot properly be viewed as a superseding cause.
A California Supreme Court decision paves the way for another chance to hold these deputies’ responsible for their irresponsible actions. The one issue the Ninth Circuit found in favor of the officers — the “knock and announce” violation — is now removed, thanks to this local ruling.
Under California law, unlike under 42 U.S.C. § 1983, the failure to knock and announce can be a basis of liability. The officers knew or should have known about the Mendezes’ presence. Yet they decided to proceed without taking even simple and available precautions, including announcing their presence, which could have protected the Mendezes from the severe harm that befell them.
The deputies are now on the hook for even more damages, something they could have avoided by not appealing the district court ruling. But QI cases tend to resolve in favor of law enforcement, so why not roll these dice? But you’d think it would all be pretty clear where this was going after the Ninth Circuit’s first pass at the case. What little the officers thought they’d gained from the Supreme Court’s reversal on a single claim has now turned into additional damages for state law violations.