In Monday’s morning links, I noted the story of Andrew Scott, a Florida man who was shot and killed by a police officer who came to his home, pounded on his door and never identified himself as law enforcement. Scott wasn’t suspected of any crime and did nothing illegal during the altercation. What he did do is grab his own gun, which he held pointed at the floor after he was understandably startled by the banging on the door to his apartment. Scott opened the door, saw a figure with a gun and then attempted to close the door. The officer fired six shots, three of which struck Scott, killing him. Last week, the U.S. Court of Appeals for the 11th Circuit threw out the lawsuit filed by Scott’s family, finding that the officer who killed Scott is protected by qualified immunity, the court-invented doctrine that makes it nearly impossible to sue police officers, even for egregiously over-the-top use of force that ends in death.

As Slate’s Mark Joseph Stern points out, this is something that should worry not just Fourth Amendment advocates, but also those who care about the Second Amendment. Citing the dissent written by 11th Circuit appeals court Judge Beverly Martin, Stern writes:

The most fascinating part of Martin’s analysis centered around Sylvester’s insistence that the shooting was justified because Scott opened the door while holding a firearm. This “conclusion that deadly force was reasonable here,” Martin noted, “plainly infringes on the Second Amendment right to ‘keep and bear arms.’ ” Citing the Supreme Court’s decision in D.C. v. Heller, which affirmed an individual right to handgun ownership under the Second Amendment, Martin wrote, “If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.”
That seems exactly right to me—and it raises an important point: The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.

One would think. Over at National Review, David French made a similar point. 

On Wednesday, the Supreme Court will hear oral arguments in L.A. County v. Mendez, a case that could give them just such an opportunity to address the issue. The case stems from a 2010 confrontation between Angel and Jennifer Mendez and L.A. County deputies Christopher Conley and Jennifer Pederson in the couple’s home.

In October 2010, the two deputies were looking for a rogue parolee. According to the deputies, a confidential informant told them that a man who fit the description of the parolee had been spotted riding a bicycle in front of a house owned by a woman named Paula Hughes. Acting only on that tip (note, the man wasn’t spotted on a parked bike at the house; he was seen riding by it), the deputies searched the house — without a warrant. Before the search, the deputies had also been told that Hughes had let a down-on-his-luck high school friend named Angel Mendez and his pregnant wife build a little shack and live in her back yard. After not finding their fugitive parolee in the house, Deputy Pederson announced that she was going to “clear the back yard.” Conley joined her. They still hadn’t bothered trying to obtain a warrant.

Knowing that the shack in the yard was a residence, the two entered it without knocking or announcing themselves, as they’re required to do by law. Angel Mendez kept a BB gun near his bed to shoot away pests. When the police entered his home without knocking or announcing, he was startled and reached for the gun. Deputies Conley and Pederson then opened fire, sending 15 bullets toward Angel Mendez and his wife. Jennifer Mendez was struck in the back. Angel Mendez was hit in the back, right arm, right hip, right shin and left foot. His right leg had to be amputated below the knee.

The case turns on a long-standing problem created by the consistently deferential way the courts treat police officers. Absent clear evidence to the contrary, cops who violate laws or constitutional rights are assumed to have done so inadvertently. But what happens when those violations of law or constitutional rights cause a suspect to take (also justified) actions that then cause police officers to reasonably fear for their lives — and to then use lethal force? In this case, the deputies clearly violated the Fourth Amendment, several times over. But after they did so, Mendez reached for what probably looked like a real gun. Under the law, once he did, the deputies were justified in using lethal force. But Mendez was also justified in his own actions, given that the deputies had violated his own Fourth Amendment rights, and he quite reasonably feared for his safety.

The cops can’t be criminally charged for the shooting. In theory they could be sued, but in every circuit in the country but the 9th, federal appeals courts have ruled in favor of the police in such instances. But the 9th Circuit has adopted a doctrine of provocation. That doctrine says that if unconstitutional police actions create a chain of events resulting in the use of force, the initial violations make the police civilly liable for harm caused by that force, even if other circumstances transpired to make the use of force itself reasonable. So far, because of the provocation doctrine, both the district court and the U.S. Court of Appeals for the 9th Circuit have ruled in favor of the Mendezes. Los Angeles County appealed to the Supreme Court late last year, and the court granted cert.

Conceivably, the Supreme Court could go a number of different ways. It could adopt the provocation doctrine for the entire country, strike it down completely or find some way to resolve the case without doing either. Defense attorney and legal blogger Scott Greenfield isn’t optimistic:

The grant of cert … directly calls into question whether the provocation doctrine should be upheld or overruled. This isn’t to say which way the Supremes will go, or whether they will ultimately rule on it at all, but it bodes poorly for the rule given that the Ninth Circuit hasn’t fared particularly well in the Supreme Court, and that the doctrine hasn’t been adopted by other circuits.
Noting that this doesn’t affect the propriety of the conduct, the shooting, which was held reasonable and is not up for review, but rather whether the deputies will enjoy qualified immunity for their constitutional violations, a win for the Mendez’s at the Supreme Court would be enormously significant, bringing a huge dose of reason to the latitude given police officers to create, then exploit, unconstitutional conduct.  Perhaps the Court will make this the law of the land, but then, smart money is on the death of the provocation doctrine. It just makes too much sense.

If the court ends up striking down the provocation doctrine, gun owners in particular ought to be concerned. Because police departments aren’t required to keep such data, it’s difficult to say just how often they raid the wrong house — or the “right” house based on information that turns out to have been wrong. Police advocates will say such mistakes comprise only a tiny percentage of overall raids, but given that criminologist Peter Kraska has estimated that there are somewhere between 50,000 and 100,000 door-breaching raids per year in the United States, and if even 1 percent of those are on the wrong residence, that would result in 500 to 1,000 such mistakes per year. In the documentary “Do Not Resist,” a Richland County, S.C., SWAT commander said that drug raids are about “50-50,” meaning that about half the time they find drugs, and about half the time they don’t. Again, due to lack of data, it’s impossible to say how representative this is. And certainly in some of those cases where the police don’t find drugs, it’s not because they got the wrong house, but because the dealers moved their supply.

Yet given that about 36 percent of U.S. households own a gun, even if we assume that just 1 in 100 police raids target the wrong house or are based on bad information, that works out to 180 to 360 gun owners — and possibly their families — who are wrongly raided by police each year. This is admittedly a crude estimate — again, it’s due to the fact that police departments aren’t required to keep track of their mistakes. But the general point here is that given the frequency of these raids and the frequency of gun ownership, there will inevitably be some overlap. Such incidents likely happen on a fairly regular basis. And given that these raids are designed to disorient and confuse everyone in the targeted residence, that’s a lot of incidents in which things could go horribly wrong.

Those are just the cases in which police raid someone who actually possesses a gun. There have been plenty of other cases in which courts have found that police acted reasonably when shooting someone during one of these raids after mistaking something harmless for a gun, be it a blue cup, a T-shirt or the glint off a wristwatch (all are real incidents). Courts tend to be pretty forgiving of cops in such circumstances, owing to the danger and volatility of these raids. (Never mind that the police are the party that created the danger and volatility — and that courts tend to be less forgiving of suspects who make similar mistakes.) In these cases too, absent a provocation doctrine, the shooting would likely be deemed justified even if the initial entry into the house were ruled unconstitutional.

In theory, though the people who get shot in such cases can’t sue for the shooting itself, they could sue (or in the cases of those who don’t survive, their families could sue) if there was an initial Fourth Amendment violation. But any damages would be limited to only the harm caused by the initial entry. It’s a safe bet that such cases would see very little payout at all — not enough to serve as a deterrent, and probably not even enough to persuade most civil rights attorneys to take the case in the first place.

One other thing: There are only a few tools available to enforce the Fourth Amendment. One is the exclusionary rule (the rule that evidence seized due to an illegal search is inadmissible at trial). Another is civil liability for police officers. The only real remaining deterrent is professional discipline. In Hudson v. Michigan, the Supreme Court refused to apply the exclusionary rule when police fail to properly knock and announce themselves before breaking down a door. If the Supreme Court dispenses with the provocation doctrine too, the only possible remaining deterrent to enforce the knock-and-announce requirement — the rule that says the police have to knock, announce themselves and give you time to peacefully answer the door before subjecting you to the violence of a forced entry — will be professional discipline. In other words, our sole protection from cops barging into our homes unannounced will be the hope that other cops will discipline their colleagues for failing to knock and announce — and discipline them severely enough that it serves as an effective deterrent. If you read this blog with any regularity, you’ll know why that isn’t exactly encouraging.

Okay, one more thing: Even if the Supreme Court ends the provocation doctrine in the 9th Circuit, it doesn’t need to be the death of the doctrine. As is often the case, the court would only be setting the upper limits of state conduct. If they wanted to, Congress or any state legislature could still pass a law to codify the provocation doctrine. That, of course, would take some political will. But it’s important to remember that when it comes to the powers we grant to police, the Supreme Court needn’t always be the last word.