Does a police officer violate the Fourth Amendment when the officer uses reasonable force in response to a hazardous situation the officer created, and does an injured individual’s actions that give rise to the need for use of force constitute an intervening, superseding event that severs the causal relationship between the police officers’ conduct and the individual’s injuries?
In this case, the Supreme Court will decide whether a police officer’s conduct leading up to her use of force against a citizen is relevant to the inquiry of whether that force was reasonable, and if so, what the limits are on holding that officer liable. The deputies of the County of Los Angeles argue that no liability should attach to their decision to open fire on Angel and Jennifer Mendez, because they were responding to the Mendezes’ threatening behavior. The Mendezes argue that the deputies provoked their threatening behavior, so they should be liable for opening fire on the Mendezes. The parties disagree as to whether the Ninth Circuit’s provocation rule, which would hold the deputies liable under the Fourth Amendment, conforms to Supreme Court precedent. A win for the deputies could promote police officer safety and help preserve the integrity of the qualified immunity doctrine by keeping standards of behavior clear. A win for the Mendezes could preserve the balance of protections for police officers and citizens and provide better incentives for officer reasonableness during every stage of an investigation.
Questions as Framed for the Court by the Parties
- The Ninth Circuit’s provocation rule holds officers liable under the Fourth Amendment for objectively reasonable force, vitiates qualified-immunity protections, and permits tort liability in the absence of proximate cause. Should this Court reject the provocation rule and continue to analyze police use of force under the established legal framework set out in Graham?
- The Court of Appeals held alternatively that the Deputies were liable for the shooting “under basic notions of proximate cause.” Did the court err in holding that the failure to secure a warrant proximately caused the shooting, particularly where the Deputies shot in reasonable self-defense after one of the Plain-tiffs pointed a gun at them and the outcome would not have changed if the Deputies had a warrant?
On October 1, 2010, a group of police officers and deputies were searching for a wanted parolee in a California neighborhood. The police team suspected that the wanted man might be hiding on a particular property and decided to investigate but did not obtain a warrant to search the property. While other officers approached the house on the property to get consent to search it, Deputies Christopher Conley and Jennifer Pederson were told to cover the back door of the house and ensure that the rest of the property contained no threats to the other officers. Prior to receiving this assignment, they were told that two people, entirely unconnected to the wanted man, lived somewhere in the backyard of the house. Conley and Pederson state that they did not hear this exact announcement. During their sweep of the backyard, Conley and Pederson found an area with various items out in the open, including clothing, an air conditioning unit, and an electric cord. In this area, they also saw a small windowless shack and decided to search it. As they opened the door to search the shack, Mr. Angel Mendez, who lived inside, happened to be moving his BB gun that he used to shoot rodents. Seeing a man with what looked like a rifle in his hands, the deputies opened fire on Mr. Mendez and his then pregnant girlfriend, Ms. Jennifer Mendez. Conley and Pederson fired a total of fifteen shots, hitting Mr. Mendez five times and Ms. Mendez twice. As a result of the shooting, one of Mr. Mendez’s legs had to be amputated below the knee.
The Mendezes brought a § 1983 suit against the County of Los Angeles and Deputies Conley and Pederson, stating that Deputies Conley and Pederson had violated their Fourth Amendment right to be protected from excessive use of force both because their use of force was excessive at the moment it was used and because they provoked the need for that force through their unconstitutional entry into the shed.
The district court agreed with the Mendezes’ claim of a Fourth Amendment violation because the Deputies had entered the shack without a warrant, without knocking and announcing their identities as deputies, and without an exigent circumstance exception to the warrant requirement. The court stated that it was reasonable for the Deputies to use force in fear for their lives at the time that they fired their shots, but held, in accordance with the Ninth Circuit’s “provocation doctrine,” that the use of force was still excessive because the deputies had unconstitutionally created the circumstances that led to the need for the use of force. Further, the court held that the Deputies were not eligible for qualified immunity and awarded $4.1 million in damages to the Mendezes for their injuries.
The county and the Deputies appealed the decision, and the Court of Appeals affirmed that the Deputies were not eligible for qualified immunity for entering the shack without a warrant, but reversed the decision about their ineligibility for qualified immunity for failing to knock and announce their presence. The court affirmed the holding that the Deputies could be held liable for their reasonable use of force because they unconstitutionally created the circumstances that led to the shooting. The court further held that even if the provocation doctrine did not exist, the Deputies could still be held liable for proximately causing the shooting. The County of Los Angeles and Deputies Conley and Pederson petitioned the Supreme Court for a writ of certiorari, which the Court granted.
WHETHER THE DEPUTIES’ CONDUCT WAS REASONABLE
The County of Los Angeles and Deputies Christopher Conley and Jennifer Pederson (“the Deputies”) assert that the decision to open fire on the Mendezes’ residence was reasonable at the moment they opened fire. According to the Deputies, an excessive use of force claim under the Fourth Amendment violation requires that the use of force was unreasonable at the time the officers used the force. The Deputies maintain that reasonableness of the force depends on the facts and circumstances the officers at the scene were aware of. In the present case, the Deputies claim to have acted reasonably because they believed to be in danger of being shot by Mr. Mendez. According to the Deputies, despite having acted reasonably, the lower courts held them liable under the provocation rule—that the use of force in this case was unreasonable because the deputies created the need for force. The Deputies offer three reasons for the Supreme Court to reject the provocation rule: First, the Deputies assert that the provocation rule is inconsistent with existing Fourth Amendment jurisprudence, which analyzes the reasonableness of an officer’s conduct at the moment the officer acts. According to the Deputies, the Court never resolved a Fourth Amendment claim based on facts preceding or following the alleged use of excessive force. Second, the Deputies assert that the provocation rule undermines the doctrine of qualified immunity—that officers will not be exposed to liability for reasonable conduct—because the provocation rule imposes creates liability for reasonable use of force simply because of a prior unreasonable or unconstitutional act. Lastly, the Deputies assert that the provocation rule lacks a proximate cause requirement, thus exposing officers to unforeseeable liability.
The Mendezes counter that the Deputies acted unreasonably considering the totality of the circumstances. The Mendezes claim that the Deputies misread Supreme Court cases; unlike the Deputies who assert that a Fourth Amendment claim focuses on the moment the force was used, the Mendezes assert that the Court requires that Fourth amendment claims be evaluated based on all the facts known to the officers at the time the force is used. That is, the Mendezes claim that the Court of Appeals properly considered reasonableness based on the totality of the circumstances. Furthermore, the Mendezes disagree with the Deputies that the provocation rule should be abandoned. The Mendezes assert that no qualified immunity concerns are implicated, because the officers acted in clear violation of the Constitution, and no proximate cause concerns are implicated, because injury is a foreseeable result of barging into one’s home. The Mendezes also propose a test for the Court to adopt when determining an excessive force claim based on the provocation rule: “[I]n resolving excessive force claims, courts may entertain a claim that police action foreseeably created the need for the use of force against a claimant and should apply to the police action the general standard of reasonableness established by Graham and Scott.” Specifically, the Mendezes suggest that, under Graham v. Connor, 490 U.S. 386 (1989), a court should balance the individual’s Fourth Amendment interest against the countervailing government interest and under Scott v. Harris, 550 U.S. 372 (2007), a court should consider the culpability of involved individuals and assess all issues from the perspective of a reasonable officer at the scene. Under the Mendezes’ test, where the injured party is highly culpable, officers would be free to act in a way that would create a need for force—for example, the officers would not be held liable if they were to trespass into a room in which armed robbers were holding hostages. The Mendezes’ test asserts that an officer’s conduct is unjustified if the conduct serves no government interest but creates a hazardous situation—e.g., if an officer in plainclothes were to attempt to restrain someone without identifying himself as a police officer. In the present case, the Mendezes assert that the Deputies failed to identify themselves, barged into a dwelling and startled its inhabitants, and shot Mr. Mendez who had acted neither negligently nor criminally. Accordingly, the Mendezes assert that the Deputies should be held liable.
WHETHER MR. MENDEZ’S ACTION CONSTITUTES A SUPERSEDING CAUSE
The Deputies assert that Mr. Mendez’s act of pointing a gun at them constitutes a superseding cause. According to the Deputies, an officer cannot be held liable for injuries caused to an individual if that individual acted in such a way that severs the causal relationship between the officer’s conduct and the individual’s injury. Specifically, the Deputies claim that if an individual acts in a way that law enforcement can reasonably perceive as threatening, then the individual brought the injury upon himself or herself, such that the individual’s threatening behavior constitutes a superseding cause. The Deputies claim that in this case, Mr. Mendez’s act of picking up his BB gun and pointing it at the Deputies was a threatening and a criminal act that—aside from being highly culpable—severs causation.
The Mendezes disagree, claiming that an act is only superseding if it is unforeseeable or highly culpable. The Mendezes claim that the act of reaching for one’s BB gun is neither unforeseeable nor culpable. First, the Mendezes claim that the Deputies could have foreseen that barging into the Mendezes’ home unannounced would result in a violent confrontation. Second, the Mendezes claim that reaching for the BB gun is not culpable conduct because Mr. Mendez did not know that the intruders were officers and California law allows an individual to use deadly force against an intruder. Moreover, because the Deputies conceded that Mr. Mendez did nothing wrong, the Mendezes argue that the Deputies cannot assert that he did do something wrong now.
WHETHER THE DEPUTIES’ CONDUCT WAS THE PROXIMATE CAUSE OF THE MENDEZES’ INJURIES
The Deputies assert that their decision to enter the Mendezes’ shack did not proximately cause the Mendezes’ injuries. The Deputies claim that the proximate cause requirement is satisfied if there is a sufficiently close relationship between the injury and the allegedly injurious conduct. They further claim that such a relationship is established if the injury is within the scope of the risk created by the predicate conduct. According to the Deputies, the Mendezes allege that the failure to acquire the warrant caused their injuries, but the warrant requirement does not exist to prevent excessive use of force, but rather to protect privacy, ensure proper search, and limit the scope of the search. Thus, the Deputies claim that the Mendezes’ allege injury falls outside of the scope of the constitutional right they invoke. As to the other constitutional violations the Court of Appeals attributed to the Deputies—barging into the shack, startling the Mendezes, and failing to announce themselves—the Deputies assert that these actions are irrelevant as to the sole constitutional violation that can be the basis for liability—the failure to obtain the warrant. The Deputies claim that the shooting of two civilians is not a foreseeable consequence of the failure to get a signed piece of paper.
The Mendezes respond that the Supreme Court never granted the certiorari to decide whether the Deputies’ conduct proximately caused their injuries. According to the Mendezes, the Deputies requested and the Supreme Court granted review to determine “whether an incident giving rise to a reasonable use of force is an intervening, superseding event.” The Mendezes thus urge the Court to disregard the issue of proximate cause. Moreover, the Mendezes assert that even if the Court considers the issue of proximate cause, the Court should find in their favor. The Mendezes assert that a gunshot wound is a reasonably foreseeable result of excessive force that falls within the scope of the Fourth Amendment protections. Even if the Court focused solely on the violation of the warrant clause, the Mendezes assert that the failure to obtain the warrant caused their injuries. According to the Mendezes, the purpose of a warrant is to announce the lawfulness of the search. Thus, the Mendezes argue that had the officers announced their authority—whether by presenting a warrant or by seeking consent to enter—the injuries to the Mendezes could have been avoided.
OFFICER SAFETY VS. CITIZEN SAFETY
The United States and the Los Angeles Police Chiefs’ Association, in support of the Deputies, argue that adopting the provocation rule would seriously threaten the safety of both police officers and the general public, particularly because it penalizes officers for force that was reasonable at the moment. The Major County Sheriffs’ Association adds that the provocation rule would dangerously pit a citizen’s right to privacy against an officer’s right to defend his own life. Further, the Major County Sheriffs’ Association warns that the provocation doctrine would put officer safety in the hands of a citizen’s perception of constitutionality of the officer’s behavior, thus failing to discourage the use of lethal force against an officer who a citizen believes is violating his constitutional rights. The National Association of Counties cautions that the provocation rule would jeopardize public safety because it removes police officers’ discretion to address dangerous situations that were preceded by some type of constitutional violation, even if these situations put the lives of innocent individuals at risk. When an officer knows he has committed a constitutional violation, the Major County Sheriffs’ Association and National Association of Counties argue that the provocation rule would create the dilemma of either choosing to let a potentially life-threatening danger go unaddressed or facing crippling civil liability. On the other hand, if an officer was unsure of whether she had committed a constitutional violation, the United States, the Major County Sheriffs’ Association, and the California State Sheriffs’ Association argue that the provocation rule would force her to analyze the constitutionality of her prior actions before using force and that this hesitation could prove fatal. Finally, the United States and the Los Angeles County Police Chiefs’ Association add that the provocation doctrine’s expansion of the potential scenarios for successful civil suits could reduce public safety by causing officers to err on the side of policing less in order to reduce their chances of civil liability.
The Mendezes counter that the safety of both citizens and officers would be compromised if officers were shielded from liability for their use of force in situations they unconstitutionally created. They argue that the provocation doctrine best satisfies safety concerns by discouraging unconstitutional actions that often lead to misunderstandings which in turn lead to violent confrontations. The Rutherford Institute, in support of the Mendezes, notes that it is fundamentally unfair for officers to be protected from the consequences of such misunderstandings while citizens are granted no legal protections for a misperception of, for example, an officer’s identity after the officer barges into the citizen’s home unannounced and without a warrant. Further, if the reasonableness of creating a situation in the first place is not considered, the Mendezes argue that officers would be shielded from liability for their use of force even after creating unreasonably dangerous situations. For example, the Mendenzes maintain that such a ruling would shield an officer who chooses to stand in the path of a moving car and then kills the driver to prevent being run over. The Mendezes maintain that the safety of both officers and the public would be best protected by a holding that refuses to shield objectively unreasonable behavior from liability, thus incentivizing safer police actions and reducing the number of situations requiring the use of force.
THE SCOPE OF QUALIFIED IMMUNITY
The National Association of Counties maintains that penalizing officers for actions that were indisputably reasonable at the moment directly ignores the protections of qualified immunity. The Major County Sheriff’s Association maintains that the provocation rule is inherently inconsistent with qualified immunity because it imposes liability without even considering whether the allegedly violated right was well-established, which is a key requirement of qualified immunity. Additionally, the Deputies argue that the provocation rule is at odds with the foundations of qualified immunity, which is intended to facilitate effective police actions by preventing undue fear of liability for split-second decisions. The United States also argues that the broadness of the provocation inquiry would undercut a cost-saving feature of qualified immunity doctrine by making it very difficult for officers and their municipalities to obtain summary judgment on the basis of qualified immunity.
The Mendezes counter that the doctrine of qualified immunity would not be undermined by a rule that considers more than just the situation at the moment of the use of force to determine reasonableness. They state that the qualified immunity inquiry has always involved whether an officer’s behavior was clearly unconstitutional, and the same inquiry would govern under the provocation rule even though the inquiry would include information from prior to the use of force.
- Lyle Denniston, Court to Rule on Police Shooting, Lyle Denniston Law News (Dec. 2, 2016).
- Supreme Court to Consider Liability for “Provoking” Use of Force, Law Officer (Jan. 10, 2017).