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.