Courtesy of James R. Touchstone, Esq.
On remand from the United States Supreme Court, the Ninth Circuit Court of Appeals held, in Mendez v. Cnty. of L.A., 2018 U.S. App. LEXIS 20907 (9th Cir. July 27, 2018), that law enforcement officials’ unlawful entry into a residence – absent a warrant, consent, or exigent circumstances – was the proximate cause of the subsequent shooting and injuries to the plaintiffs.
In October 2010, deputies of the Los Angeles Sheriff’s Department were searching for a parolee-at-large, Ronnie O’Dell. An informant had seen someone who looked like O’Dell riding a bicycle in front of Paula Hughes’ home. Deputies Jennifer Pederson and Christopher Conley were among those who attended a briefing about apprehending O’Dell. At the briefing, the attendees learned there was information that O’Dell had been at a nearby residence, and that officers believed there was a possibility that O’Dell had already left the Hughes residence. Officers at the briefing were also were told that a male and pregnant female lived in the backyard of Hughes’ residence.
After the briefing, a sergeant and four deputies, including Conley and Pederson, were dispatched to the Hughes’ house. Deputies Pederson and Conley, who were among those told about the couple living in the backyard of the Hughes property, were tasked with searching the area to the rear of the house. The others went to the front of the house.
Conley and Pederson, with guns drawn because they believed O’Dell to be armed and dangerous, first checked three metal storage sheds located between the house and the side border wall. They did not find anyone. Pederson and Conley then went to the back area of the house to clear the remainder of the property. There was debris throughout the rear of the Hughes property, including abandoned automobiles. About 30 feet behind the house, stood a wood and plywood shack. Conley and Pederson, guns drawn and on alert, approached the shack. An electrical cord, and a water hose were running into the shack, an air conditioner was installed, and open clothes locker was nearby.
Inside the shack, Angel Mendez (“Mendez”) and his then-girlfriend, now wife Jennifer Garcia (“Garcia”) were both sleeping on a futon inside the 7’x7’x7’ structure. Conley, with Pederson close behind, opened a wooden door and entered the shack without announcing their presence. In doing so, they roused the sleeping Mr. Mendez. In rising from the futon, Mr. Mendez picked up a BB gun, used to shoot vermin on occasion, from where it lay next to him on the futon to place it on the floor so that he could rise. In the process, the gun was pointed in the general direction of Conley and Pederson. The deputies thought that the BB gun, which appeared to be a rifle, threatened them. They immediately opened fire. Mendez was shot approximately ten times, resulting in the eventual amputation of his lower leg and ongoing medical expenses. Though the deputies did not see her initially, Garcia was also shot in the upper back and hand.
Mendez and Garcia brought 42 U.S.C. section 1983 civil rights violation claims against the County and deputies based the assertion of being subject to a warrantless search/entry, a failure to knock and announce before entry, and excessive force. The District Court found only nominal liability on the first two claims and, despite finding the deputies’ use of force was constitutionally reasonable, found them liable for excessive force based on application of the Ninth Circuit’s Provocation Rule. Damages were awarded in the amount of $4 Million.
Prior Ninth Circuit Decision
As discussed in our prior Client Alert (Vol. 32 No. 12), the Ninth Circuit Court of Appeals, upon review, reversed on the knock and announce liability, finding that it was not clearly established law that officers must re-announce their entry (knock-and-announce their presence again) when entering a separate structure from the residence that is on the curtilage (which is defined as the area immediately adjacent to a home). The officers were accordingly found to be entitled to qualified immunity. Yet the Ninth Circuit still found officers liable for their unconstitutional entering of the shack without a warrant. The Ninth Circuit used its “Provocation Rule” to find that, despite the reasonableness of the force used at the time of the shooting of Mendez and Garcia, the deputies had created the situation that led to the shooting – the very need for the use of force.
Supreme Court’s Decision
The United States Supreme Court rejected the Ninth Circuit’s use of the Provocation Rule to manufacture of an excessive force claim, finding the Rule “incompatible with [the Supreme Court’s] excessive force jurisprudence.” The Court explained that an evaluation of the “totality of the circumstances” (as established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989)) as to whether the use of force was reasonable remained the Fourth Amendment standard to assess excessive force claims. The Supreme Court remanded, suggesting some ways that liability may yet still attach. As we noted in the aforementioned Client Alert, one of these avenues to liability was whether the warrantless entry into the shack, prior to the actual use of force, was the proximate cause of the damages ultimately resulting from the officer-involved shooting. The Court had found that the Ninth Circuit did not adequately separate the proximate cause analysis for the unlawful entry—on which the officers did not benefit from qualified immunity—from the proximate cause analysis for the failure to knock and announce—on which they did. The Court remanded the case for further consideration by the Ninth Circuit on this issue.
Discussion: The Ninth Circuit’s Decision on Remand
On remand, the Ninth Circuit explained that its task was to address whether the officers’ unlawful entry, as distinct from the unlawful mode of entry—that is, the failure to knock and announce—was the proximate cause of the Mendez and Garcia injuries. The Court noted that it must first determine what act or omission constituted the breach of duty, and then ask whether that act or omission was the proximate cause of the injuries. The defendants argued that failing to get a warrant was the breach of duty, and that even if they had obtained a warrant, the same shooting still could have occurred. The plaintiffs contended that the unlawful entry into the shed was the relevant breach of duty. The Court explained that under either view of which unlawful conduct was the specific breach of duty, either unlawful conduct was a proximate cause of the injuries. Nonetheless, the Court found that the plaintiffs’ view was the correct one, and addressed that issue first.
The Court explained that the Fourth Amendment imposes a duty on officers not to enter a home, except under certain specific conditions. One such condition is pursuant to a properly issued warrant. The Court noted that for the purposes of Section 1983, “[a] properly issued warrant makes an officer’s otherwise unreasonable entry non-tortious—that is, not a trespass.” The Court explained that lacking a warrant, or consent to enter or exigent circumstances, an officer “must not enter; it is the entry that constitutes the breach of duty under the Fourth Amendment.” The Court found that the relevant question to consider therefore was not the defendants’ question of whether the shooting and injuries would have happened even if the deputies had obtained a warrant, but whether the shooting and injuries would have happened if the deputies had not unlawfully entered the residence.
The Ninth Circuit then turned to determining whether the unlawful entry was the cause in fact and the proximate cause of the plaintiffs’ injuries. The Court quickly found that the entry was, without question, the cause in fact because had the deputies not entered, Mendez and Garcia would not have been shot.
Addressing proximate cause next, the Court initially explained that the proximate cause question asks “whether the unlawful conduct is closely enough tied to the injury that it makes sense to hold the defendant legally responsible for the injury,” and “whether the duty includes protection against such consequences.” Noting that “‘[p]roximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct,’” the Court of Appeals explained that, under either a consideration of the scope of the risk or of foreseeability, the findings of the District Court made clear that the deputies’ entry into the structure was here the proximate cause of the plaintiffs’ injuries. The Court cited other decisions in explaining that the risk of injury posed by an armed stranger, including law enforcement officers, into a residence was one of the reasons the Fourth Amendment prohibited entry except under specified conditions.
Here, the Court noted that the District Court found that the deputies entered with guns drawn; were aware, or should have been aware that Mendez and Garcia were living in Hughes’ backyard; were on alert, thinking O’Dell the parolee-at-large was armed; and should be expected to understand that some individuals would keep firearms in their homes to defend against intruders, as strongly protected by the Second Amendment. In such a context, the Court explained, “armed officers entering a house will necessarily present a substantial risk to anyone in the house they perceive as being armed. It is all the more important that officers in such cases abide by their duties under the Fourth Amendment.” The Court added that “[e]specially where officers are armed and on alert, violent confrontations are foreseeable consequences of unlawful entries.”
The Court rejected the defendants’ contention that the failure to knock-and-announce was the sole proximate cause because injuries can have more than one proximate cause. Regardless, they still had a duty not to enter unlawfully, even had they knocked and announced themselves, and that breach of duty could have foreseeably led to the injuries that occurred. Consent might not have been given if they had knocked and announced, for example, or the residents might have been deaf; unlawful entry still would have been the breach of duty which established the entry as a proximate cause of the injuries.
Having established the deputies’ unlawful entry was the proximate cause of the injury, the Court addressed the defendants’ view that the failure to obtain a warrant was the relevant breach of duty that proximately caused the injuries. The Court explained that even under this posture, the Court would reach the same conclusion.
To procure a warrant, officers would need probable cause that O’Dell was in the Mendez-Garcia shack. Though the Court found it unlikely that probable cause could even be established to secure a warrant, the Court explained that the “slower and more deliberative process” of doing so – gathering necessary information to comply with the Fourth Amendment, seeking an impartial magistrate – would lead to a greater likelihood of reflection on the facts involved, including perhaps remembering that two people lived in the back of Hughes’ house. The Court viewed the process of law enforcement officials seeking and obtaining a warrant as providing a necessary barrier protecting people from unnecessary harm at the hands of police even when a warrant was granted because it would increase the chances for officers to reflect (in non-exigent circumstances) on potential dangers to individuals and themselves of the risks of harm. The Court stated that the failure to engage in this deliberative process foreseeably led to the injuries sustained by Mendez and Garcia. The Court thus concluded proximate causation of the plaintiffs’ injuries would still attach even if the Court had considered the failure to obtain a warrant to be the duty breached.
The defendants also contended that their entry was not the proximate cause of injury because Mendez’s movement of the gun to point in their direction was a superseding or intervening cause of the injury. If they were right, the Court explained that the deputies would indeed be free from liability because a superseding or intervening cause involves a shifting of responsibility away from a party who would otherwise have been responsible for the harm that occurs. The Court cited Bodine v. Warwick as a case example which noted that if a suspect had shot at persons known to be officers, that shooting would be a superseding act freeing the officers from liability from harm caused as a result of an unlawful entry. However, the Court found Bodine inapplicable here because, at the time of the entry, Mendez had no idea that the intruders were peace officers. The Court explained that “if an officer ha[d] 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.” Nothing about Mendez’s actions justified a shifting of responsibility away from the deputies who unlawfully entered the shack, the Court said.
On the plaintiffs’ cross-appeal, the Court considered their negligence claim under California law. After the District Court’s earlier decision, the California Supreme Court held in Hayes v. County of San Diego that “tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability.” Noting that the District Court had found that the “totality of Deputies Conley and Pederson’s conduct was reckless as a matter of tort law,” and that “the conduct rose beyond even gross negligence,” the Ninth Circuit here found the deputies “beyond negligent” for entering a dwelling with guns drawn and without announcing their presence, particularly considering they had been told that the dwelling was occupied. The Court found the deputies’ failure to knock and announce especially dangerous. Unlike under federal law, per Venegas v. County of Los Angeles, the deputies were not entitled to qualified immunity under California law because they did not knock and announce their presence. The Court stated that deputies knew or should have known about Mendez and Garcia’s presence, but they chose to proceed without taking even basic precautions like announcing their presence, which could have prevented the severe injuries that followed. Moreover, immunity under Cal. Gov’t Code sections 821.6 and 820.2 did not apply because they were of relevance only in specific situations not at issue here.
The Ninth Circuit accordingly affirmed the District Court’s holding that the two deputies were liable for Fourth Amendment search violations and remanded with instructions that the judgment be amended to award all damages arising from the shooting in the plaintiffs’ favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant. The Court of Appeals also instructed that judgment be entered in the plaintiffs’ favor on the California negligence claim for the same damages arising out of the shooting.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit’s proximate cause analysis provides that law enforcement officers may be liable for all damages that might reasonably flow from an entry into a residence without a warrant or applicable exception to the warrant requirement under the Fourth Amendment. The Court noted the potential for reflective consideration inherent in the process of obtaining a warrant, and the reason for that protective (for civilians) barrier, is preventing harm that might otherwise occur from an unlawful entry into a residence. Entry in the absence of a warrant or applicable exception, in the Court’s view, foreseeably leads to injuries, such as those that befell Mendez and Garcia here.
Agencies should also be cognizant of California law, as presented by the Hayes case, and applied by the Ninth Circuit to the negligence claim here. While an interpretation of state law by a federal court is not binding on state courts examining the issue, it does constitute persuasive authority upon which a state court may rely. In sum, the Ninth Circuit’s decision here significantly expands the scope of potential damages resulting from an unlawful entry into a residence. Agencies should therefore consult with their legal advisors to ensure that any policies that they may have governing entry into residences are in compliance with this decision, and further ensure that members of the agency are receiving appropriate training in this area of the law.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at email@example.com.
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 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
 Paroline v. United States, 572 U.S. 434 (2014).
 Attocknie v. Smith, 798 F.3d 1252, 1255 (10th Cir. 2015); James v. United States, 550 U.S. 192 (2007), overruled on other grounds by Johnson v. United States, 135 S. Ct. 2551 (2015)
 72 F.3d 393, 400 (3rd Cir. 1995).
 57 Cal. 4th 622 (2013).
 153 Cal. App. 4th 1230 (2nd Dist. 2007).