County of Los Angeles v. Mendez: Excessive Force Claims and the End of the Provocation Rule

Suppose a law enforcement officer enters the front door of your home without a warrant. You are asleep when he enters, but wake up when you hear the door open. You pick a gun up from your nightstand and walk toward the front door.

The officer sees you coming toward him with the gun pointed in his direction.

Is it reasonable for him to shoot you? Is the entity that employed the officer liable for your injuries?

The Ninth Circuit in Mendez v. County of Los Angeles, 815 F.3d 1178 (9^th Cir. 2016), concluded that it was reasonable for an officer to shoot the occupant of a home in a similar circumstance. Yet, the Ninth Circuit reasoned in Mendez, even if the force used is reasonable and not excessive, an officer is liable for its use if he intentionally and recklessly provokes a violent response and that provocation is an independent constitutional violation. For that reason, the Mendez court determined that the officers who entered the Mendezes’ home without a warrant were liable for their use of force.

The United States Supreme Court vacated the Ninth Circuit’s judgment in Mendez yesterday, rejecting, in a unanimous opinion, the Ninth Circuit’s provocation rule as incompatible with the high court’s excessive force jurisprudence. See County of Los Angeles v. Mendez, 581 U.S. ___, (2016). Noting that the issue of whether the officers used excessive force was not before it, the Supreme Court left undisturbed the lower court’s determination that the use of force was reasonable.  (Slip op. at 8 n.*). The Court remanded the case for consideration of whether, under basic notions of proximate cause, the officers’ warrantless entry into the respondents’ home proximately caused the injuries that resulted.

The remainder of this post unpacks yesterday’s opinion and its analysis.

Facts. In October 2010, a task force of deputies from the Los Angeles County Sheriff’s Department were searching for a parolee-at-large named Ronnie O’Dell. O’Dell was wanted on felony charges, was believed to be armed and dangerous, and had previously evaded capture. After receiving a tip that O’Dell had been seen at a home owned by Paula Hughes, officers mapped out a plan for capturing O’Dell there. Some officers planned to approach Hughes’ front door, while other officers watched the back door and searched behind the house. The officers were notified before the search that a man, Angel Mendez, and a pregnant woman, Jennifer Garcia (now Mrs. Jennifer Mendez), lived in a structure in Hughes’ backyard.

The officers went to Hughes’ home in the middle of the day. Three of them knocked on the front door while Deputies Christopher Conley and Jennifer Pederson went to the back of the property. Hughes answered the door and asked if the officers had a warrant.  A sergeant told her they did not, but said they were looking for O’Dell and had a warrant for his arrest. One of the officers thought he heard someone running inside the house. The officers prepared to force the door open.  Hughes then opened the door, telling the officers O’Dell was not inside the house. She was arrested, and the house was searched, but the officers did not locate O’Dell.

Meanwhile, Deputies Conley and Pederson searched the area behind the house with guns drawn. After searching in vain for O’Dell in three storage sheds located in the backyard, the deputies approached the door of the wooden shack that Mendez and Garcia lived in behind Hughes’ house. The shack had a single doorway that was covered with a blue blanket.

When the deputies approached, Mendez and Garcia were inside the shack asleep on a futon.  The deputies did not know the two were inside, and did not announce their presence before pulling back the blanket from the doorway. Mendez heard them, thought Hughes was in the doorway, and rose from the bed, where the BB gun he kept to ward off pests was in his lap. Mendez picked up the BB gun so he could stand up and place it on the floor. As a result, when the deputies entered the shack, he was holding the BB gun, which looked like a small caliber rifle and was pointed toward Deputy Conley.  Conley yelled, “Gun!” Both deputies opened fire, discharging 15 rounds. Mendez and Garcia were shot several times and suffered severe injuries. Mendez’s right leg was later amputated below the knee.  O’Dell was not in the shack or anywhere on the property.

Rulings below. The Mendezes filed suit under 42 U.S.C. § 1983 against the County of Los Angeles and Deputies Conley and Pederson. They alleged that (1) the deputies carried out an unreasonable search by entering the shack without a warrant (“warrantless entry claim”); (2) the deputies performed an unreasonable search because they failed to announce their presence before entering (“knock and announce claim”); and (3) the deputies carried out an unreasonable seizure by using excessive force in opening fire on the Mendezes (“excessive force claim”).

The trial court ruled in the Mendezes’ favor on the warrantless entry and knock and announce claims, but awarded nominal damages on the basis that the pointing of the BB gun was a superseding cause that barred their recovery for damages. On the excessive force claim, the trial court determined that the deputies’ use of force was reasonable. The court nevertheless applied the provocation rule to hold the deputies liable, and awarded $4 million in damages.

The Ninth Circuit affirmed in part and reversed in part. The appellate court agreed that the warrantless entry violated clearly established law, but held that the officers were entitled to qualified immunity on the knock and announce claim. Like the trial court, the court of appeals applied the provocation rule and held the deputies liable for the use of force. Finally, the Ninth Circuit held that the deputies were liable regardless of the provocation rule because it was “reasonably foreseeable” that the officers would meet an armed homeowner when they “barged into the shack unannounced.” 815 F.3d at 1194-95.

The Supreme Court granted certiorari review to determine whether to uphold the Ninth Circuit’s provocation rule and whether an incident giving rise to a reasonable use of force is a superseding event that breaks the chain of causation from a prior unlawful entry.

Supreme Court’s analysis of the provocation rule. The Supreme Court identified the provocation rule’s “fundamental flaw” to be its use of “another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” Slip op. at 6.

The Court explained that because the Fourth Amendment prohibits unreasonable searches and seizures, reasonableness is always the touchstone of the analysis. The operative question in excessive force cases is whether the totality of the circumstances justifies the particular force used to effect the search or seizure. In such cases, reasonableness is judged from the perspective of a reasonable officer on the scene based on the information the officer had when the conduct occurred. When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.

The problem with the provocation rule is that it continues the liability analysis beyond this conclusion.  Under the rule, courts must look back in time to see if a different Fourth Amendment violation is tied to the use of force. That violation, rather than the forceful seizure itself, can then serve as the foundation for the excessive force claim. This approach, in the view of the Court, inappropriately conflates distinct Fourth Amendment claims, and “permits excessive force claims that cannot succeed on their own terms.” Slip op. at 7.

Moreover, the Court said there was “no need to dress up every Fourth Amendment claim as an excessive force claim.” Slip op. at 10. In the case at bar, for example, the Court explained that the Mendezes could recover damages for any injuries proximately caused by the warrantless entry.

Supreme Court’s analysis of proximate cause. As for the Ninth Circuit’s alternative holding, the Supreme Court deemed the appellate court’s proximate cause analysis “to have been tainted by the same” conflating of Fourth Amendment claims. Id. The Ninth Circuit’s foreseeability analysis focused on the officers’ “startling” and “unannounced” entry, which were risks associated with the officers’ failure to announce themselves before entering. But given the appellate court’s determination that the officers had qualified immunity on the knock and announce claim, it could not serve as a basis for liability. The Supreme Court instructed the court of appeals on remand to revisit the question of whether the Mendezes’ injuries were proximately caused by the officers’ failure to procure a warrant. The Court also left open the possibility that the Ninth Circuit on remand might revisit its determination that the use of force was reasonable, noting that “all we hold today is that once a use of force is deemed reasonable .  . it may not be found unreasonable by reference to some separate constitutional violation.” Slip op. at 8 n.*.

Were the Mendezes’s injuries a foreseeable result of the warrantless search?  The parties disagree on this point.  The deputies argue they were not. They point out that “[o]ne would not ordinarily say, ‘You better get a search warrant, or else people will get hurt.’” Brief for Petitioners at 46. Moreover, they contend that obtaining independent verification of probable cause from a judicial officer has nothing to do with avoiding violence during a search. Id.

The Mendezes contend that the deputies’ arguments wrongly limit the purposes of the warrant requirement, which, in their view, does exist in part to avoid serious confrontations because of uncertainty regarding the legal authority for the search. Brief for Respondents at 54-55. They further argue there is no reason to distinguish between a knock and announce violation and an unlawful entry violation since “it is wholly foreseeable” that an unreasonable search “can result in a violent confrontation.” Id.

We’ll have to wait to see what the Ninth Circuit thinks.