« Law School Hiring, 2017-2018, Thread One | Main | Conference at Marquette Law: The Ethics of Legal Scholarship »

Thursday, September 14, 2017

Constitutional Torts, Proximate Cause and the Egg Shell Skull Rule

Last September, I blogged about Manuel v. City of Joliet, a wrongful detention case arising from false evidence manufactured by the police.  Manuel involved the distinction between two types of  Fourth Amendment claims, a false arrest claim and a malicious prosecution claim.  The plaintiff in that case was trying to frame his action as a  malicious prosecution claim--largely because false arrest claims are (because of prior case law) very limited in their potential scope of recovery.  A successful false arrest claim will get you damages for a day or two behind bars, and usually nothing more.  I suggested in my post that the principle of proximate cause should be invoked to extend the potential damages far beyond the two-day limit.  If a cop manufactures evidence against you, and you spend 10 years in jail, wasn't your incarceration proximately caused by the manufactured evidence?

The Court did not wander down the proximate causation road in Manuel, and it's not hard to blame it because there was a narrower way to resolve the issue.  But, in a case heard later the same term, it would be much harder for the Court to avoid the proximate causation issue.  That case was County of Los Angeles v. Mendez.  In Mendez, two police officers entered a shack behind a house without knocking or announcing before entering.  Unbeknownst to the officers, two persons were napping in the shack and, surprised by the officers' entrance, grabbed a BB gun to protect themselves.  The officers responded to this provocation by shooting the two persons several times.  It seemed clear from the facts that a knock and announce violation had occurred, but excessive force was harder to figure.  Shooting somebody that is pointing a gun at you is not excessive force, but what if the only reason that person is pointing a gun at you is because you failed to knock and announce your presence?  The Ninth Circuit held that the officers used excessive force because they "provoked" the response.  Thus, Mendez straightforwardly teed up the proximate causation issue for the Court: can an officer's use of force be the proximate result of a knock and announce violation?  The Court said yes and no.  

First, the no.  The Court said that one Fourth Amendment violation (here, the knock and announce violation) cannot cause, as a matter of law, another Fourth Amendment violation (the excessive force violation).  When I read that portion of the opinion, I thought, "well, that's a bit formalistic; why can't one violation cause the other?"  But then the Court went on to say that the difference between the two violations doesn't really matter all that much, which is where we get to the yes.  In the Court's view, even if the officers did not engage in excessive force, they are still legally responsible for the harm proximately caused by their knock-and-announce violation.  Such harm, the Court seemed to believe, could include the shooting of the persons in the shed.  The Court remanded the case to the lower court to further evaluate what harms proximately flowed from the knock and announce violation.  

On remand, I suspect the lower court (and down the road, perhaps the Supreme Court as well) will have to wrestle with a proximate causation issue that has rarely been addressed in the realm of constitutional torts: the egg shell skull rule.  Stated generally, the rule holds that a tortfeasor is liable for the full extent of harm suffered by the plaintiff, as long as the harm is of the type that would ordinarily flow from the misconduct.  It is immaterial whether the extent is foreseeable in and of itself; as long as the type of harm is foreseeable, the tortfeasor is on the hook for all harm of that type.  Thus, the inquiry on remand should involve the question: what is the type of harm caused by a knock and announce violation?  

At a very minimum, the violation would seem to harm one's sense of privacy.  Thus, if a resident suffered years of fear and mental distress triggered by the knock and announce violation, such harm would be compensable under the egg shell skull rule.  But what about the shooting?  Although I am sympathetic to the plaintiffs in Mendez, I find it hard to frame the "type of harm" inquiry in a way that benefits them.  Does a reasonable police officer, before entering a home without knocking or announce his or her presence, worry that the failure to do so will "harm" the resident by causing her to defend herself in a way that will cause her to be shot by the officers?  This seems a stretch.  

But maybe I'm wrong.  I'm not a tort scholar, though I have always wanted to teach torts.  If you are aware of a case where the egg shell skull rule would seem to point towards liability here, feel free to comment or email me separately.  

Posted by Jack Preis on September 14, 2017 at 02:20 PM | Permalink


The Mendez case is really a very interesting development in Section 1983 litigation and I have recently started writing a paper on it. I fully agree with Dan's comment above regarding the seeming futility of anchoring a "proximate cause" argument on a purported knock-and-announce violation. The Ninth Circuit's reasoning seems to have foreclosed the issue and I highly doubt if this can be modified on remand, as what the Supreme Court directed. It's worth mentioning though that the Ninth Circuit, in view of its findings on the alleged knock-and-announce violation, DID entertain a plausible proximate cause argument based on another ground, i.e., the failure to obtain a search warrant. It was the Supreme Court, however, which held that the knock-and-announce violation -- not the warrantless search -- that can potentially provide a basis for relief to the victims. This only goes to show how proximate causation questions can be very tricky. How far back along the chain of causal links should one locate the best proximate cause "candidate?" I wonder if the Supreme Court's signal to look into the knock-and-announce violation would somehow influence how this case will be resolved on remand.

Posted by: Ryan Balisacan | Nov 7, 2017 10:41:08 AM

I think there's some confusion about Mendez. The 9th circuit gave the police officers qualified immunity on the "knock and announce" violation because they didn't contravene a "clearly established" statutory or constitutional right. From the 9th circuit:

> The officers did, however, announce their presence at Hughes' front door, and we disagree with the district court that existing case law squarely governs the question whether the deputies needed to announce their presence again before entering the shack in the curtilage. We have stated that “officers are not required to announce at [e]very place of entry,” United States v. Valenzuela, 596 F.2d 1361, 1365 (9th Cir.1979) (citation omitted) (holding that there is no requirement to knock at a garage after properly entering home), and we are not aware of case law clearly establishing that officers must re-announce their presence at a shack in the curtilage, even if it was obvious that it was being used as a residence.

All of the arguments about attributing the liability are missing the uncontested holding of the 9th circuit: that the knock and announce claim does not rest on a "clearly established" constitutional violation and therefore fail the requirements for 1983 relief.

This is not talking about knock and announce claims in general, but a specific case of two residences on the same property. The Mendez "house" was a shack with an extension cord running to it.

From the 9th circuit opinion describing the shack,

> [the officer] then proceeded through the backyard toward a 7′ x 7′ x 7′ shack made of wood and plywood. The shack was surrounded by an air conditioning unit, electric cord, water hose, clothes locker (which may have been open), clothes, and other belongings. The deputies did not knock and announce their presence at the shack...

In oral arguments Justices Kagan and Sotomayor were asking questions to help the Plaintiff tie the liability to the lack of the warrant since they were not appealing the knock and announce qualified immunity. Unfortunately for the plaintiffs, however, the argument was not persuasive. The shooting could have been prevented by knocking and announcing their presence and this violation was the proximate cause. Unfortunately, the procedure in this situation, even had the officers known it was a second residence, was not "clearly established" for 1983 purposes.

Posted by: dan | Sep 16, 2017 1:55:02 PM

gdanning- thanks for that quote and citation. It would seem to help the plaintiffs on remand. One thing that jumps out at me, however, is how the quote frames the issue as one of law, while proximate causation issues are usually one of fact. One could envision the defendants responding by saying, in effect, "the issue is what a reasonable officer would in fact expect upon entering a house in 2017, not on the legislative purpose behind the knock and announce requirement back in the nineteenth century." Thanks again.

Posted by: Jack Preis | Sep 15, 2017 3:56:35 PM

I think that, yes, a reasonable police officer would know that failure to knock and announce would create a risk that the homeowner would defend him/herself and be shot, because "... one of the principal objectives of the English requirement of announcement of authority and purpose was to protect the arresting officers from being shot as trespassers, '. . . for if no previous demand is made, how is it possible for a party to know what the object of the person breaking open the door may be? He has a right to consider it as an aggression on his private property, which he will be justified in resisting to the utmost.' Launock v. Brown, 2 B. & Ald. 592, 594, 106 Eng. Rep. 482, 483 (1819)." Ker v. California, 374 US 23, 58 (1963) (Brennan, J, dissenting)

Posted by: gdanning | Sep 15, 2017 11:32:29 AM

The comments to this entry are closed.