Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause

Yesterday’s argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.

A Fourth Amendment violation, but a subsequent “reasonable” shooting

As previewed here, Angel Mendez and his wife present sympathetic facts, while the law enforcement officers start off with a Fourth Amendment violation. In brief:

Two Los Angeles County Sheriff’s deputies were sent into the backyard of a home, while other officers forced their way into the house itself without a warrant or consent. In the backyard, the deputies came upon a shack occupied by the Mendezes. Guns drawn, the deputies opened the door of the shack without a warrant and without knocking or announcing who they were. Mendez, not knowing who was barging into his home, picked up a BB gun (just moving it, not aiming it, as the district judge found) in order to get out of bed. Seeing this, the deputies opened fire, causing significant injuries. Mendez’s leg had to be amputated below the knee.

After a five-day bench trial of the Mendezes’ civil suit against the county and the deputies, the district judge settled many disputed facts and legal questions, and calculated damages for the Mendezes at roughly $4 million. The judge ruled that the deputies (at the house and at the shack) had violated the Fourth Amendment by conducting their entries without a warrant; no exceptions to the warrant requirement applied. The judge also ruled that the deputies had violated the Fourth Amendment’s “knock and announce” requirement. But the judge further ruled that at the moment they fired their guns, the deputies were acting “reasonably” because they thought someone was going to shoot them. However, after all was said and done, the judge concluded that the government was liable for the damages because the deputies had recklessly “provoked” the confrontation (by entering without a warrant and without announcing).

The U.S. Court of Appeals for the 9th Circuit affirmed the award on appeal. Although law enforcement officers are entitled to “official immunity” unless they violate “clearly established rights,” the court of appeals ruled that the Fourth Amendment’s warrant requirement was clearly established; thus the officers are not immune from damages for that violation. But the court also ruled that it was not clearly established that the deputies had to “knock and announce” in this specific context, because the officers at the house had already knocked and announced. So (as was assumed at the argument yesterday), because the deputies receive official immunity for the “knock and announce” violation, that violation cannot support an award of damages. Nevertheless, the 9th Circuit affirmed the award on two grounds: (1) under the circuit’s own “provocation” doctrine, the deputies can be liable if they recklessly “provoked” the situation; and (2) even aside from provocation, the deputies are liable “under basic notions of proximate cause.”

 Oral argument: four justices advocate relief, while four others see no proximate cause?

Yesterday’s argument addressed both of the 9th Circuit’s grounds, but focused almost entirely on the second one, proximate cause. (No justice mentioned the Mendezes’ briefed argument that the county’s cert petition had presented three questions but then reduced them to two somewhat different questions at the merits stage.)

Justice Sonia Sotomayor jumped in first, appearing to defend damages for police shooting victims “who had nothing to do with causing the loss.” Noting that homeowners have a “Second Amendment right … to possess firearms to protect themselves,” Sotomayor and (and later Justices Elena Kagan and Stephen Breyer) seemed to suggest that deputies should reasonably foresee a violent confrontation if they enter unlawfully.

But Josh Rosenkrantz, an experienced Supreme Court advocate who argued for the county, firmly and repeatedly reminded the court that the failure to knock and announce in this case is assumed not to violate clearly established law, so that damages cannot be based on that. Kagan then presented perhaps the best argument for the Mendezes: Shouldn’t this be viewed more generally as an “unauthorized entry” that violates the Fourth Amendment and can support damages?  Breyer similarly asked a bit later “why do you … break it down this way?” and if you “look at all the circumstances,” why isn’t there proximate cause?  Justice Ruth Bader Ginsburg also offered a couple of seemingly favorable remarks; that adds up to four justices possibly favoring the Mendezes.

Indeed, Leonard Feldman, about to argue for the Mendezes, must have been pleased when Justice Anthony Kennedy (a potential fifth vote) then got into a brief squabble with Rosenkrantz. Kennedy presented a hypothetical, and when Rosenkrantz gave a “no damages” response, Kennedy said, “then we simply have no way to enforce the warrant requirement, … you want us to write that in the law?” But as described below, any hope by the Mendezes for Kennedy’s vote appears to have been short-lived.

Nicole Saharsky then argued for the solicitor general in support of the county, and she focused her remarks more generally on the 9th Circuit’s provocation doctrine. Sotomayor asked “why does a police officer get a pass” if the officer creates the dangerous situation? But Chief Justice John Roberts intervened, asking “is the label what’s wrong?” and noting that “I don’t think of it as provocation that you should have gotten a warrant earlier in the day.” Saharsky stayed focused on her general critique of the provocation theory, calling it “incredibly ill-defined.” But Kennedy then shifted the argument back to one of proximate cause – “those are two different things, right?”

Kagan continued to press the best argument for the Mendezes, seeking agreement that in general, “an unauthorized entry produces violence” or “might produce violence.”  The justices also demonstrated the special position that the solicitor general’s office occupies, permitting Saharsky to add “one more sentence” to her argument not once but three times after her time had expired.

Feldman – who also argued the Sheehan case two terms ago in which Justice Samuel Alito’s opinion for the court noted criticism of the provocation doctrine – then began by presenting a generalized “balancing” test that appeared to gain no traction with the court. (Justice Antonin Scalia would have blanched – balancing tests were his bane.) Kennedy drove the argument back once more to the specific question of proximate cause on this record – and then flatly said, “I just don’t see the proximate cause between failure to get the warrant and what happened here.” Alito (a longtime critic of the provocation doctrine) mildly challenged Feldman, and Roberts then focused firmly on the relationship between not getting a search warrant and the shooting: “Why did that make a difference? … [T]he failure to get a warrant did not cause the entry.” That too seems to add up to four votes, against the Mendezes, if one assumes that Justice Clarence Thomas (who asked no questions) is also likely to side with the county.

When Roberts repeated, “I don’t know why the failure to get a warrant matters,” Kagan immediately asked, “can I suggest why?,” and did. As she continued her explanation, Roberts, in his low-key way, offered perhaps the best line of the term: “Counsel [referring to Kagan], if I could interrupt you to ask a question.”

Conclusion: the real action is in conference, and the result seems uncertain 

As with all the court’s arguments, there is much more in the transcript than can be recounted here. But Kennedy summed it up at the end, quietly implying that the real action will happen during the justices’ private conference this week: “Based on” the arguments of counsel, “we [and I would emphasize the “we”] can have our discussion as to whether or not it was indeed proximate.”

Re-reading the transcript, I honestly am not sure what the justices will do. If the desire to end or limit the “provocation doctrine” is strong, perhaps some opinion (or opinions) will issue. On the other hand, it is not hard to imagine an even split here, with four justices firmly believing that the Mendezes’ innocent actions, coupled with the deputies’ unreasonable behavior, justify affirming the award. Yet there is little doubt that some justices would strongly dislike that outcome. In that case, I can also imagine seeing something I’ve never seen before (although Professor Dan Epps advised me late last night of one precedent from 1960): separate unhappy opinions accompanying a one-sentence “affirmed by an evenly divided court” judgment.

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