Argument preview: Mixing concepts of causation, provocation and qualified immunity in the Fourth Amendment context
on Mar 15, 2017 at 10:38 am
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 sheriff’s 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 sheriff’s 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 (Mendez’s 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 court’s 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 officer’s 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 Circuit’s “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 didn’t 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 circuit’s 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 general’s “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 Circuit’s “provocation” theory is likely paramount.
On to the merits. At bottom, the county’s argument is simple: The court’s 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 court’s 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 court’s “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 theory’s confines, if not reject the label entirely. But after reams of briefing, and a likely (almost perfunctory) rejection of the 9th Circuit’s prior broad statements, “provocation” will probably not be the ultimate focus of the court’s 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 county’s 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 general’s brief, in which the argument that the deputies “did not proximately cause” Mendez’s 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 Mendez’s reaction and the deputies’ shooting.
Thus, while it seems unarguable that the failure to knock and announce led to Mendez’s 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).
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 Alito’s repeatedly expressed skepticism towards a broad reading of the 9th Circuit’s “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 county’s arguments that the deputies’ actions did not constitute “proximate” cause, or that Mendez’s 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 it’s 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 county’s 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. We’ll see if the justices are able to untangle these two ideas – causation versus qualified immunity – at oral argument next Wednesday.