Opinion analysis: Finding Fourth Amendment unanimity while allowing Fourth Amendment justice
In an opinion that seems carefully crafted to achieve unanimity rather than break new ground, the court yesterday unsurprisingly and unanimously rejected the U.S. Court of Appeals for the 9th Circuit’s Fourth Amendment “provocation rule” while leaving the specific facts open for further analysis on remand. Justice Samuel Alito authored a crisp 11-page opinion, without dissent, for an eight-justice court (Justice Neil Gorsuch did not participate) that is rightfully weary of 4-4 tie possibilities. Alito’s opinion hewed closely to the excessive force precedent of Graham v. Connor and avoided points that had provoked strong disagreement at oral argument and in the briefs. As a result, the opinion masks more issues than it resolves. All we know, after reading this opinion, is this: When law enforcement uses force that is judged “reasonable” based on “circumstances relevant to that determination,” then “a different Fourth Amendment violation cannot transform [that] reasonable use of force into an unreasonable seizure.”
Sympathetic facts and three distinct Fourth Amendment claims
As detailed in my prior summary, two deputy sheriffs, searching for a felon, entered a shack where they had been told a homeless couple lived, without a search warrant and without knocking or announcing their presence or identity. Angel Mendez and his then-girlfriend were resting inside. When he heard someone entering, Mendez picked up a BB gun to move it in order to stand up. The deputies saw what they reasonably viewed as a weapon pointed in their direction, and immediately opened fire, severely injuring the woman and Mendez (whose lower leg was amputated as a result).
The Mendezes (now married) pursued three distinct Fourth Amendment claims in their federal lawsuit against the deputies and Los Angeles County: the failure to get a search warrant, the failure to knock and announce, and excessive force. No one has disputed that, at the moment of the shooting, the deputies acted reasonably in shooting to protect themselves. But as Alito notes, the district court “did not end its excessive force analysis at this point.” Instead, the court awarded damages based on “why the shooting took place,” noting that “were it not for the” failure to get a warrant and to knock and announce – both constitutional violations — Mendez would not have been startled or picked up his gun.
In so ruling, the district court applied the 9th Circuit’s “provocation rule,” which as described by Alito “permits an excessive force claim … where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.” On appeal, the 9th Circuit affirmed this application of its doctrine. The appeals court held that entering the residence without a warrant violated clearly established Fourth Amendment law. But the court ruled that the deputies were entitled to qualified immunity for the knock-and-announce violation, because it was not “clearly established” in this context: Other officers had in fact knocked and announced at the front door of the main house. Still, because the deputies’ unconstitutional warrantless entry had recklessly “provoked” the otherwise reasonable shooting, the court of appeals affirmed the damages award.
As an alternative rationale, the appeals court said that “basic notions of proximate cause” also supported the damages award, 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.” But, as the Supreme Court noted in remanding on this alternative theory, by relying on the “unannounced” nature of the entry, the court of appeals appeared to “focus” on the same knock-and-announce violation for which it had already ruled that the officers should receive immunity.
The court rejects the provocation rule as an “unwarranted and illogical expansion of Graham”
When law enforcement officers use force to effect a search or seizure, the Fourth Amendment requires “reasonableness.” A law-enforcement entry, an arrest, and even a shooting (a “seizure”) are Fourth Amendment “events” governed by this timeless yet amorphous constitutional standard. Claims of unreasonable force by law enforcement in such circumstances are characterized as “excessive force,” and can lead to constitutional tort damage awards for violating the Fourth Amendment, unless qualified immunity intervenes to protect the law-enforcement officers from liability.
As the court pointedly noted yesterday, “The framework for analyzing excessive force claims is set out” in Graham v. Connor. In Graham, Alito emphasized, the court held that “the operative question in excessive force cases is ‘whether the totality of circumstances justifies a particular search or seizure,’” paying “’careful attention to the facts and circumstances of each particular case.’”
No one can argue with this account of settled law – because, of course, it is so general that it answers no specific questions. The trick how such general legal principles are applied to the specific facts of each case.
It is in this application that the 9th Circuit erred, said the court as it overturned the provocation rule. “[T]he objective reasonableness analysis,” the court explained, “must be conducted separately for each search or seizure.” In the court’s view, the “fundamental flaw” of the provocation rule is that it uses a separate and independent constitutional violation to “manufacture an excessive force claim where one would not otherwise exist.” When viewed from the deputies’ perspectives at the time they confronted a weapon pointed at them, the shooting in this case was not unreasonable. By asking a court to “look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force,” the Supreme Court reasoned, the 9th Circuit’s “novel and unsupported” rule “conflates distinct Fourth Amendment claims.”
A key footnote necessary to avoid a 4-4 tie?
If you followed the court’s opinion to this point, you might think that the it would conclude by holding that Mendez cannot recover damages in this case. But that is not what the opinion says at all. Instead, a single footnote appears in the opinion, marked with an * rather than a number. One can speculate that this footnote was first suggested by someone other than the opinion’s author – a justice who threatened otherwise to dissent. Even more likely, four justices may have asked for this footnote as a condition for joining, thereby threatening a 4-4 affirmance of the judgment below and continuation of the provocation rule. That was surely an outcome Alito and other justices wanted to avoid. Thus footnote * is the key to this opinion. Here is what it says:
Graham commands that an officer’s use of force be assessed for reasonableness under the “totality of the circumstances.” … On respondents’ view, that means taking into account unreasonable police conduct prior to the use of force that foreseeably created the need to use it. …We did not grant certiorari on that question …. All we hold today is that once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.
Thus – and this seems surprising given the tone of the opinion up to this point – the court did not rule that the Mendezes cannot recover on the facts of their case. All the court held was that the theory of the “provocation rule” – that one constitutional violation can somehow render a different, separate and distinct, “reasonable” seizure unconstitutional – is rejected. This holding does not mean – or at least it does not appear to mean – that persons injured by law enforcement’s use of force cannot recover for injuries “proximately caused” by a Fourth Amendment violation committed before “the moment” of a shooting. Indeed, a key phrase from Graham – “at the moment” – on which the petitioners had relied, was pointedly not mentioned anywhere in this opinion.
In light of footnote *, yesterday’s opinion seems uneventful. As with all good proximate cause tort hypotheticals, the outcome will depend on the facts. This is nothing new, given that the Framers made the word “unreasonable” the fulcrum of the Fourth Amendment in 1790.
In a concluding paragraph that I imagine was also worked on by more than one justice, the court appeared to endorse the “objective” – Alito also called it a “notion” – that “it is important to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.” This seems like a healthy recognition in light of contemporary concerns regarding police shootings. Indeed, said the court, “both parties” – and, it appears, the unanimous court — “accept the principle that plaintiffs can – subject to qualified immunity – generally recover damages that are proximately caused by any Fourth Amendment violation.” This phrasing may satisfy the justices offended by this particular shooting and favoring recovery by persons like the Mendezes – severely injured by law enforcement although they “had nothing to do with” the event, as Justice Sonia Sotomayor said at oral argument. In deference to those justices, the court remanded the case for the lower courts to “revisit” the proximate cause question. (In a somewhat unusual move, the court pointed to specific pages of the briefing as a “useful starting point” for the remand.) Meanwhile, the 9th Circuit’s general “provocation rule” is dead, as Alito had suggested it should be two years ago in City and County of San Francisco v. Sheehan and, indeed, years earlier as a judge on the U.S Court of Appeals for the 3rd Circuit.
Thus the court preserved the logic of its precedents, while not endorsing the law-enforcement shooting of two innocent people. It would be encouraging if this opinion set a new standard for the newly reconstituted court: finding ways to rule unanimously while reaching fair results.