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Tuesday, May 30, 2017

SCOTUS Symposium: Thoughts on County of LA v. Mendez

I'm happy to be participating in this symposium, with a great group of co-contributors—many of whom are personal friends and all of whom I admire. I've been avidly reading PrawfsBlawg since it launched my 1L year more than a decade ago, so it's a treat to finally be contributing to it. Consistent with my scholarly fields, I'll be most interested in what the Court does in criminal law and procedure cases. But I'm also a general SCOTUS watcher; fellow guest Ian Samuel and I do a SCOTUS-themed podcast called First Mondays that I feel obliged to plug at least once here. 

For my first post, I'd like to offer some thoughts on County of Los Angeles v. Mendez, a decision today that concerns when officers can be held liable for injuries that follow from earlier constitutional violations. Here's how the case arose: LA County Sheriff's deputies were searching for a fugitive. Their search led them to a house; living in a shack behind that home were Angel Mendez and his partner, Jennifer Garcia (eventual plaintiffs, and the losing respondents at SCOTUS). Although there were some indications that the shack was used as a residence—and evidence in the record that the officers had been told that people were living in the backyard—the officers entered without a warrant and without knocking or announcing. Mendez and Garcia were sleeping inside as officers entered the property; immediately before the officers entered, Mendez had picked up a BB gun to move it.  Upon encountering Mendez holding the BB gun inside (which the officers mistakenly, though understandably, perceived to be a firearm), the officers fired 15 shots, seriously injuring both Mendez and Garcia. 

Mendez and Garcia sued and got a $4 million damages award; the Ninth Circuit upheld that award on the theory that the officers violated clearly established law by entering the shack without a warrant. The Ninth Circuit relied on the "provocation doctrine"--a theory that had arisen in the lower courts and which basically provided that if an officer's unconstitutional actions "provoked" a violent confrontation, that officer could be held liable for damages arising from an otherwise reasonable use of force. SCOTUS reversed in a unanimous opinion (sans Gorsuch, so 8-0) written by Justice Alito. As the Court explained, the provocation theory was impossible to square with the Court's caselaw on excessive force claims. Under Graham v. Connor, an officer's use of force that is otherwise reasonable under the relevant circumstances can't become unreasonable simply because of an earlier constitutional violation.

The Court's rejection of the provocation theory isn't at all surprising. The doctrine had been criticized in the lower courts; the doctrine seemed confusing and hard to cabin; and the plaintiffs themselves hadn't even defended it in their briefing. A somewhat more promising angle, though, had been the Ninth Circuit's alternative holding that the damages award was justified under the principle of proximate cause, on the theory that the shooting was the foreseeable result of the earlier constitutional violation (the warrantless entry). Here, too, the Court held the Ninth Circuit had erred: the Ninth Circuit had focused on the risks created when the "officers barged into the shack unnannounced," but this was a risk created by the officers' failure to knock and announce (a separate claim on which the Ninth Circuit had found the officers entitled to qualified immunity), not their failure to get a warrant.  On remand, the Ninth Circuit will get another shot at the proximate cause analysis "based on the deputies’ failure to secure a warrant at the outset." 

Here, too, the result isn't shocking. And the fact that the decision was unanimous, with nary even a concurrence, suggests that the opinion doesn't break huge amounts of new ground.  And I think the result is basically correct in light of existing doctrine and the way the Ninth Circuit opinion was written (i.e., not very well).  Still, there are two questions I'm interested in the wake of Mendez.

First, I think it's useful to take a step back and look at the larger picture of Fourth Amendment doctrine and how frequently it denies a remedy for seemingly avoidable wrongs. The doctrine is very granular, requiring courts to analyze an incident on a claim-by-claim (and essentially moment-by-moment) basis rather than analyzing the entire set of police actions as a whole.

Take Graham v. Connor—under that decision, courts are supposed to analyze whether an officer's use of force was reasonable based on the objective circumstances at the time force is applied. I think the problem that the provocation doctrine was created partly to solve is that the Graham analysis doesn't seem to leave a lot of room for consideration of the circumstances leading up to the use of force. Even if, say, police make a series of questionable decisions that lead them into a dangerous situation, courts tend to analyze damages claims based on a very narrow timeframe.

So—to model an example partly based on a pro bono case I worked on a couple years back—imagine that police choose to search a residence based on a questionable tip of drug activity; they decide to enter in force, at night, military-style, despite no reason to think that the occupants are dangerous; they fail to adequately knock and announce; one of the residents, fearful for his life and unaware that the people entering his house at the dead of night are police officers, comes to the door carrying a weapon; and the police shoot and kill him. So long as the officers reasonably fear for their lives at the moment is force is used, courts will tend to call that a reasonable use of force—even though many of the police choices that lead to that deadly confrontation seem decidedly unreasonable.

The larger problem this example is meant to illustrate is that Fourth Amendment analysis is often narrowly focused on isolated decisions made by individual officers at single points in time, rather than a course of decisions made by a law-enforcement agency as a whole. And that narrow perspective means that the law doesn't do nearly enough, in my view, to discourage dangerous police practices. (Seth Stoughton has written thoughtfully about this problem in the New York Times; see also his and Brandon Garrett's great recent article A Tactical Fourth Amendment.).

This approach to the Fourth Amendment is oriented around the perspective of the officer; the Court seems hesitant to put officers in a position of having to second-guess themselves at moments when they might reasonably fear for their lives. (See Graham's emphasis on "the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.").  Yet this officer-centered approach seems hard to justify if a goal of the Fourth Amendment is protecting "the people" and discouraging police actions that, at least viewed from a slightly less narrow perspective, seem pretty unreasonable.  And an officer-focused approach seems especially hard to justify in a world where officers are almost invariably indemnified when damages are awarded against them. 

Mendez certainly doesn't do anything to fix this problem. It does leave a slight window open for change: the plaintiffs had argued that Graham's totality-of-the-circumstances objective reasonableness approach should allow courts to consider "unreasonable police conduct prior to the use of force that foreseeably created the need to use it."  But I'm skeptical that the Court, especially now that Justice Gorsuch is on board, will ultimately endorse that approach. For the most part, Mendez will contribute to this problem, by emphasizing that courts need to break down a police encounter into its component doctrinal components, rather than asking a question like "could this shooting have been avoided by smarter choices?"

Second, I'm interested in what the Court might say about proximate cause analysis in the future. In theory, proximate cause should be able to solve some of the problems I worry about above. Even if, say, the plaintiff loses on an excessive force claim because an officer's shooting of a person inside his home is judged reasonable under Graham, it's possible that the victim could still recover under a different claim if that shooting was the foreseeable result of another constitutional violation—say, a failure to knock and announce.  In Mendez, the Court left the possibility open that the plaintiffs could still recover if the officers' failure to secure a warrant (though, as noted above, not the failure to knock and announce) proximately caused the shooting. 

But here, too, I see some trouble down the road for civil-rights plaintiffs. Justice Alito didn't mention it in Mendez, but as a Third Circuit judge he wrote about proximate cause in an influential opinion in Bodine v. Warwick. As he explained there, the "superseding cause" doctrine puts limits on proximate causation (cleaned up): 

[E]ven if the entry was unlawful, this would mean, under basic principles of tort law, that the troopers would be liable for the harm "proximately" or "legally" caused by their tortious conduct (i.e., by their illegal entry). See, e.g., Restatement (Second) of Torts §§ 431 and 871 cmt. 1 (1965 & 1979). They would not, however, necessarily be liable for all of the harm caused in the "philosophic" or but-for sense by the illegal entry. See, e.g., Restatement (Second) of Torts § 431 and cmt. a (1965). Among other things, they would not be liable for harm produced by a "superseding cause." See, e.g., Restatement (Second) of Torts §§ 440-453 (1965). And they certainly would not be liable for harm that was caused by their nontortious, as opposed to their tortious, "conduct," such as the use of reasonable force to arrest Bodine.

A simple hypothetical will illustrate the importance of these distinctions in a case such as this. Suppose that three police officers go to a suspect's house to execute an arrest warrant and that they improperly enter without knocking and announcing their presence. Once inside, they encounter the suspect, identify themselves, show him the warrant, and tell him that they are placing him under arrest. The suspect, however, breaks away, shoots and kills two of the officers, and is preparing to shoot the third officer when that officer disarms the suspect and in the process injures him. Is the third officer necessarily liable for the harm caused to the suspect on the theory that the illegal entry without knocking and announcing rendered any subsequent use of force unlawful? The obvious answer is "no." The suspect's conduct would constitute a "superseding" cause, see Restatement (Second) of Torts § 442 (1965), that would limit the officer's liability. See id. § 440.

Then-Judge Alito's hypothetical is pretty extreme, and I have no interest in arguing here that he's wrong about how the superseding cause doctrine would apply in those exact facts. But I worry that in future cases, that doctrine will be used to limit liability in cases closer to the borderline. To refer back to my hypothetical above—there are many scenarios where officers' failure to knock and announce leads directly to harm or death, because a surprised homeowner picks up a weapon out of self-defense without realizing that it is the police who are breaking down his door, and the police, seeing that weapon, shoot him. Such a case is quite different from the hypothetical in Bodine, where a home's occupant intentionally attacks and kills police officers. 

Yet my worry is that in such a case Justice Alito, and perhaps other members of the Court, would be just as willing to say that the homeowner's actions—even if premised on a mistake—count as a superseding cause, breaking the causal chain of proximate cause (Bodine says that officers "certainly wouldn't be liable for harm caused by . . . the use of reasonable force," and I think Justice Alito would think includes that a Graham-reasonable shooting). That would be unfortunate, in my view, because as the Court itself acknowledged in Hudson v. Michigan (and as Radley Balko has ably argued), one of the reasons we have a knock and announce requirement is that "an unannounced entry may provoke violence in supposed self-defense by the surprised resident." If so, proximate cause doctrine won't do much to solve the narrow-perspective problem that I flagged above. 

Posted by Daniel Epps on May 30, 2017 at 11:07 PM in 2016-17 End of Term | Permalink


I am not sure Alito sees a difference between his hypo in Bodine and yours.

Mendez and your analysis connects with a slightly different concern for police conduct that is not unlawful or unreasonable, but makes the use of force more likely to occur. For example, the activities of the police officers in the Tamir Rice shooting--they drove right up to him and jumped out of the car at close range, all of which made it more likely that Rice would react slowly and the officers would shoot.

Posted by: Howard Wasserman | May 30, 2017 11:56:11 PM

Howard, I agree with all that (and I think I was saying that Alito wouldn't see a difference). The Tamir Rice tactical problem (which I agree is troubling) goes to my first, larger, concern, I think--but not the second, which is a subset of the first problem. I don't think proximate cause, even if really broadly understood, would, standing alone, do much to address the Tamir Rice scenario (since it still depends on an earlier constitutional violation—and unless you expand the lens for the Graham inquiry, courts will still assess the shooting as of the moment it occurs).

Posted by: Dan Epps | May 31, 2017 12:03:06 AM

A few references in the oral argument, one by Sotomayor, another (citing a Chicago police practice) by the respondents' lawyer comes to mind in reference to the car hypo. A "totality of circumstances" approach seems in theory to be flexible enough to work. Guess it depends on how it is applied. Evergreen comment, I know.

Posted by: Joe | May 31, 2017 11:06:54 AM

I confess that I am confused by this post. The Ninth Circuit's holding permitted the imposition of liability based in significant part on acts that were legally immunized (the failure to knock and announce). That has got to be wrong. The remaining question, then, is whether the warrantless entry alone was a sufficient predicate for an award of damages reflecting the shooting. We normally rely on the doctrine of proximate cause to determine what damages are legally traceable recoverable to an antecedent violation of law; I don't know why we would should be wary of applying it here. If the test should not be "proximate cause," what should it be? If the concern is that in a future case, Justice Alito might somehow distort the doctrine of probable cause (though he was spot-on in Bodine), why don't we wait and see if that occurs?

More generally, my concern is that the advocates of broader police liability seem unaware of the tradeoffs involved. To the extent that the law puts greater pressure on officers to avoid the use of deadly force, there is also a greater likelihood that officers will simply avoid situations that they fear may lead to violent confrontations. For example, a department serious about adopting and enforcing the Garrett/Stoughton proposal that officers seek alternatives to the use of deadly force runs the risk that officers who fear discipline if their tactical judgments are second-guessed will simply learn to avoid potentially violent confrontations altogether. There is already some evidence of this kind of over-deterrence effect with resulting increases in crime (see the Rushin/Edwards article in Cornell). The more serious departments are about enforcing these kinds of limitations on tactical judgment, the more likely over-deterrence. It would not be hard, after all, to drive the rate of police shooting of civilians to zero -- just have the police to stay in their cars. The result, of course, would be higher crime in the neighborhoods most in need of effective policing, as I have argued in a recent article. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2864072

That said, I am happy to acknowledge that this is an issue on which reasonable people can disagree, but the seeming lack of awareness in legal scholarship of the trade-offs that come with greater legal pressure on the tactical judgment of police officers seems to me to be a serious oversight.

Larry Rosenthal

Posted by: Larry Rosenthal | May 31, 2017 7:09:59 PM

Larry, I confessed to being confused about what's causing your confusion. I was clear in the post that it was unsurprising that the Ninth Circuit's ruling was reversed in light of the real problems with its analysis; I'm instead using the case as an opportunity to discuss some larger problems I see with Fourth Amendment doctrine as a whole. As for waiting and seeing what happens with proximate cause, you are welcome to, but I think there's value in anticipating potentially divisive issues that might lurk beneath a unanimous opinion.

Of course there are tradeoffs involved here, as there are in any regulatory question. But I see little reason to conclude that any attempt to reduce the staggering number of police shootings each year is likely to be socially costly--that is, I see no reason to believe we have somehow accidentally stumbled upon the optimal level of regulation of police violence. Other countries do better; I'm not sure why we have to assume that we can't. Moreover, given the extremely high rate of indemnification I reference above, it's not obvious to me why the threat of more § 1983 suits would have much chilling effect at all.

Posted by: Dan Epps | May 31, 2017 8:01:18 PM

Do these other countries that do better have more gun regulation? That's a completely uninformed, non-leading question, but my vague understanding is that, in most Western countries, there just isn't that much gun ownership, such that police have much less reason to fear being shot when they see people holding things that look like firearms, or reaching into their waistbands, or saying things like "Officer, just so you know, I have a gun" (because in these other countries, they wouldn't have a gun and wouldn't have occasion to say so), etc. I doubt there are many comparators with gun ownership that's too comparable to ours, but are there countries that are even sort of similar in this respect where police shootings are much rarer?

Posted by: Asher Steinberg | May 31, 2017 9:26:46 PM

Asher, yes, that's definitely a confounding factor; there are a lot more guns in the US than in any other country. But the differences in the rates of police fatalities here seem even greater than some of those disparities. We have about 4x as many guns per capita here as in Germany, and about 4x the population. But though we have something like 1000 police killings per year (or more; there are serious data collection problems about fatal police shootings in the US, and some researchers are working to create their own databases; I've seen some estimates that suggest the numbers are 1500 or more), Germany usually has fewer than 10 fatal police shootings in any given year. Given that the rate of private gun ownership in Germany is far from zero, I don't think you can say that the low # of shootings is entirely explained by the fact that police in Germany aren't worried about violence. I think a big part of the problem in the US is poor training by local municipalities and overuse of SWAT tactics--the Radley Balko book I link above is really informative on this point.

Posted by: Dan Epps | May 31, 2017 9:53:42 PM


If you believe that as a result of indemnification, police are unlikely to be deterred by damages liability, then it seems to me that there is little reason to believe that liability is a good way of reducing "the staggering number of police shootings each year." Instead, what liability would accomplish is a reallocation of public funds toward civil rights plaintiffs and away from whoever has the least political clout in the appropriations process -- probably poor people. It is far from clear to me that devoting more money to pay plaintiffs and less money to, say, health care for the poor improves social welfare. But maybe you disagree. On the other hand, if you do believe that damages liablity will produce deterrence, then it is unclear to me why that would produce "optimal" deterrence rather than over-deterrence. After all, the police internalize few, if any, of the benefits of effective policing. If they are made to internalize its costs, we should expect over-deterrence. We have likely seen something along those lines in Baltimore and Chicago in recent years.

Asher's point is an important one. There is a lot of data linking rates of police shooting to rates of violent crime -- especially firearms crime. To compare, the firearms homicide rate per 100,000 population in the United States is about 3.5, the comparable rate in Germany is about 0.2. It's also probably inevitable that officers are likely to err on the side of doing what they believe to be necessary to stay alive when confronting potentially violent situations. IMHO, it's rather heroic to presume that all we need to do is improve training, without any risk of over-deterrence. If we train officers in ways that lead them to believe that their tactical judgments are likely to be second-guessed unless they utilize what someone, in hindsight, decides was an available alternative, isn't there a serious risk of over-deterrence?


Posted by: Larry Rosenthal | Jun 1, 2017 12:39:56 AM

That's helpful, and does suggest that reasonable police fear of violence can't entirely explain the difference. Of course, there could be other confounding factors in Germany, as Professor Rosenthal points out, like violent crime rates, police/civilian encounters per capita, and so on. Already, if I take population and guns owned per capita, that 1000:10 ratio becomes a 6.25:1 ratio of police shootings per guns owned, and if you throw in some more confounding factors, American police might start not to look much worse than German police. Of course, even if we're ultimately left with only a 3:2 ratio, that leaves room for a great many lives to be saved and a great deal of police/citizen animosity to be avoided through better policing. I just would not dismiss out of hand the possibility that we're somewhere near the optimal level of regulation of police violence on the ground that other countries appear to do much better with police violence, as confounding factors may explain much or, for all I know, all the difference - though I am inclined, like you, to suspect we're not at that optimal level.

Other than that, I struggle to say anything about the post because I agree so completely with it, but the more I think about Mendez and its holding out proximate cause as a basis for liability, the more I wonder whether you might be a little too pessimistic about proximate cause working out. It's hard for me to imagine a case under a proximate-cause approach to certain violations where there wouldn't be something in the nature of what you fear the Court will deem a superseding cause. So if everything's going to be a superseding cause, why even hold out proximate cause? Take knock-and-announce, violations of which the Court suggests could proximately cause harm had knock-and-announce not been immunized here. Well, what are the foreseeable harms associated with knock-and-announce? For the most part, some self-defensive action by the surprised resident that in turn provokes police violence - as the Court itself trenches on acknowledging at page 11 of the opinion.

Of course, leaving proximate cause open was really the least the Court could do, given that proximate cause just is a part of 1983 law, it's especially costless here for the conservatives given the limited foreseeable harms of warrantless entry, as distinct from knock-and-announce, and it's not surprising that the Court would leave application of proximate cause for remand and hardly suggests that they think Mendez has much of a chance. Nevertheless, I'm still somewhat optimistic. For one thing, aren't superseding causes supposed to be unforeseeable intervening causes, not the very risk that makes something tortious? So how could startled, non-malicious self-defense, the avoidance of which is one of the main reasons we have a knock-and-announce rule in the first place, be a superseding cause? The Court would have to make some really muddled tort law to get to where you fear they could get.

Posted by: Asher Steinberg | Jun 1, 2017 12:52:12 AM

Larry: Your argument doesn't follow. Individual officers don't have to directly internalize the costs for liability to be something more than a mere wealth transfer. If municipalities internalize those costs (and the extent to which they do is disputed and complicated) or if their insurers do (see the work of John Rappaport) they can do things to reduce unnecessary killings (better hiring practices; better training; carrots instead of sticks to incentivize good behavior; etc.) that may not necessarily create the risk of overdeterrence that you're so worried about.

More generally, one could certainly believe that the rate of police violence is currently at the optimal level. I find that extremely hard to swallow, especially in light of extensive evidence that many shootings are caused by simply incompetent policing and complete failures to provide proper training (rather than reasonable but mistaken tactical calls). Again, I've found the work of Radley Balko quite influential on my thinking. I see no reason to believe that there aren't some improvements that could be made easily pass cost-benefit muster; the reason that such changes haven't been made, it appears, are due to the fact that police departments are extremely unwilling to accept any limits on their power and extremely unwilling to recognize when they make mistakes. Not because we've somehow just reached the optimal regulatory environment.

Asher: if the Court is careful in its proximate cause analysis, then yes I agree that violence by a surprised homeowner shouldn't count. Given that some members of the Court seem pretty eager to cut down on § 1983 litigation, I'm not as optimistic as you are that the doctrine will be applied quite so carefully, but we'll see. My fear is that someone like Justice Alito will argue that the proximate cause analysis should basically just look like an examination of whether the shooting itself was reasonable based on the objective facts as perceived by the officer. But I'll be happy to be proven wrong. This fear is based in part on cases from the lower courts (including one I worked on) where the court played pretty fast and loose with the superseding cause analysis.

Posted by: Dan Epps | Jun 1, 2017 12:05:17 PM


The effects of governmental damages liability are indeed "disputed and complicated." That is reason enough to be wary of it.

As for training, my rule of thumb is to beware of anyone who claims to have found a solution that is all benefit and no cost. Anecdotes about poor training are interesting, but the empirical evidence on its efficacy is uncertain. There was a lot of training in the wake of Tennesee v. Garner that may have improved things, but much of the low-hanging training fruit is probably picked already. It is interesting to note that all of the DOJ consent decrees provided for improved training, and yet there is consensus in the literature that the results are mixed at best. This is probably because officers necessarily exercise so much tactical discretion in the field -- it is hard to train in bright-line rules. To the extent, however, that supervision becomes sufficiently intensive that officers perceive a significant risk of sanctions if they are perceived as overly aggressive, it would be hard to achieve the right level of deterrence. Over-deterrence is what we would expect if officers come to perceive the risks of action as exceeding the risks of inaction, and I don't think anyone has figured out how to train in a way that avoids that risk. Providing officers with optimal incentives to be aggressive when required, but also restrained when required, is not so easy. The fairly widespread opposition of police officers to intrusive monitoring tells us something important. We should be hesitant to run risks that might reduce the efficacy of the police at intervening to stop violent crime in unstable communities.

In short, I regard this as a vastly harder problem than one can find by reading most of the literature that seems to be in vogue these days.

Larry Rosenthal

Posted by: Larry Rosenthal | Jun 1, 2017 1:50:13 PM

I agree that someone like Justice Alito is highly likely to reason as you say. But there was a vocal constituency (which included some criminal procedure moderates) at oral argument for a serious approach to proximate causation, so I'm somewhat hopeful. In any case, I guess what mostly matters is how proximate cause is applied in the lower courts, at least until the Court says something broad about superseding cause (which might not happen for decades, if ever), and there one can expect to see a pretty broad mix of careful and uncareful applications, both plaintiff and defendant-friendly. If anything, Mendez might skew application a little in favor of plaintiffs for the moment, at least from the existing baseline of what I'll assume is more defendant-friendly than not.

Posted by: Asher Steinberg | Jun 1, 2017 4:23:51 PM


According to the Wash Post, the US has almost 3x the guns per capita as Germany http://www.washingtonpost.com/wp-srv/special/nation/gun-homicides-ownership/table/. Moreover, isn't the salient issue not guns per capita, but handguns per capita? I doubt police are likely to confuse a cell phone with a rifle, or feat that a driver is reaching for a shotgun in the glove compartment. And, of course, gun homicide rates are far, far higher in the US than in Germany https://www.nytimes.com/2016/06/14/upshot/compare-these-gun-death-rates-the-us-is-in-a-different-world.html

That being said, your reference to poor local training is an interesting one - it would be interesting to compare police shooting rates in large, presumably more professional, departments, versus smaller ones.

Posted by: gdanning | Jun 2, 2017 11:32:49 AM

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