Last week, I wrote about L.A. County v. Mendez, a case currently before the Supreme Court. In the case, the police were looking for a rogue parolee. They got a tip from an informant that the man they were looking for was seen riding a bicycle past a particular house. Based only on that, two deputies searched the house without a warrant. They then saw a small shack in the back yard. They were told that the woman who owns the house had let a down-on-their-luck couple — Angel and Jennifer Mendez — live in the shack until they were back on their feet. The two deputies then searched that residence without a warrant as well. When the deputies opened the door, Angel Mendez reached for a BB gun he kept near the bed. He later said he wasn’t even reaching for the gun to scare away the intruders, only to move it so he could get out of bed. The two deputies opened fire, striking both Angel and Jennifer. Angel Mendez was shot several times and lost part of his leg. Jennifer was shot in the back.
The lower courts determined that the officers violated the Mendezes’ Fourth Amendment rights on two occasions. First, they failed to obtain a warrant before searching the home. And second, they failed to knock and announce before entering the residence. But on the second violation, the failure to knock and announce, the lower courts determined that the officers were protected by qualified immunity. Because the Mendezes did not live on a separate property from the main house, the federal courts found that a reasonable police officer could be confused about whether he or she was required to knock and announce before entering.
At issue before the Supreme Court — or at least so we thought — is the “provocation doctrine,” a bit of case law unique to the 9th Circuit. The doctrine holds that if the police violate someone’s Fourth Amendment rights, and that violation is the proximate cause of an escalation that leads to harm caused to the plaintiffs, then the police officers are liable for that harm. In the Mendez case, the lower courts held that because the police violated the couple’s Fourth Amendment rights by not obtaining a warrant, and because that violation caused Angel Mendez to legally and reasonable reach for his gun, which caused the deputies to open fire, the deputies are liable to the injuries sustained by the Mendezes. In every other federal circuit, the deputies would not be liable, because the courts would look only at the immediate cause of the injuries — the deputies firing their guns. Because their use of force was reasonable — they were reacting to Angel Mendez reaching for what looked like a real gun — they wouldn’t be liable, even though Mendez would have been entirely justified in defending his home. Only the 9th Circuit recognizes that it was the deputies’ initial violation that escalated the situation. The attorneys for the Mendezes were asking the court to apply the provocation doctrine to the entire country. Los Angeles County was asking the court to strike down the doctrine in the only circuit where it exists.
After oral arguments last Wednesday, it seems as if there’s a good chance that the court will do neither. Of course, all the usual caveats about the perils of predicting Supreme Court cases by oral arguments apply here. But the Roberts court has a reputation for punting on cases when it can — for avoiding big issues if it can dispose of cases by looking to smaller ones. In Mendez last week, the court’s conservative justices suggested that the case may not even need to get to the provocation doctrine. Their reasons why tell us a lot about the immense protections police officers enjoy from the federal courts, even when they’ve caused serious harm.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in particular argued that the proximate cause of the shooting wasn’t the deputies’ failure to obtain a warrant, but their failure to knock and announce before entering the Mendezes’ home. Even if the deputies had obtained a warrant, the justices argued, they’d still likely have entered without knocking or announcing. That is what caused Angel Mendez to reach for his gun, which in turn caused the officers to open fire. And because the officers were given qualified immunity for their failure to knock and announce (this wasn’t at issue for the Supreme Court), they could not be held liable for the injuries they inflicted on the Mendezes.
There are a lot of assumptions built into this line of argument, all of which tend to benefit the deputies. First, it’s just assumed that if they had applied for the warrant, they would have been granted one. Perhaps that’s true. Unfortunately, judges in general aren’t all that skeptical about search warrants, and police tend to avoid the judges who are. But it’s far from clear whether the deputies should have been given a warrant had they gone to the trouble of asking for one. The only cause they had to search either residence was a tip that an anonymous informant had spotted someone who looked like the parolee riding a bicycle in front of a particular house. That’s it. From that tip, the police entered and search not one, but two residences. If the parolee had been seen riding past several houses, would the police have been justified in searching all of those, too? That seems to be inferable from the 9th Circuit opinion:
The officers “developed a plan” in which some officers would proceed to the Hughes house, but because “the officers believed that there was a possibility that Mr. O’Dell already had left the Hughes residence,” others would proceed to a different house on the same street.
Second, several of the justices’ questions appear to just assume that if the officers had obtained a warrant, they’d still have entered without knocking or announcing. I don’t think that’s at all a given. In merely going through the process of obtaining a warrant, the officers would likely have been reminded of the fact that they need to meet a higher burden to obtain a no-knock warrant, which would have (or at least should have) reminded them that without a no-knock warrant, they’d be required to knock and announce themselves before entering. Instead, they entered both homes rashly, and without much thought about the rights of the people inside. Perversely, the assumption that these two deputies would have entered the Mendez residence without knocking and announcing even if they had obtained a warrant both reflects poorly on how the justices view these officers, but still manages to do so in a way that offers them added legal protections. Because if the deputies would have entered without knocking and announcing regardless of whether or not they obtained a warrant, their failure to obtain a warrant is removed as a proximate cause of the shooting. The shooting is then solely due to the deputies’ failure to knock and announce, and for that violation they’ve been granted qualified immunity. Even when the justices assume the worst about police officers, police officers benefit.
Los Angeles County officials also argued that if the Supreme Court were to preserve the provocation doctrine, it could endanger the lives of police officers. Attorney Joshua Rosenkrantz told the justices, “when a police officer reasonably thinks to himself … this is where I’m going to die, he has to be free to make the split-second decision to defend himself and those around him. Any legal rule that says that is unreasonable is untenable.” The added assumption here is that this is true even when the police officers’ own mistakes created the peril in which they now find themselves.
There are a couple of problems with this argument. First, it puts cops above the law. When police officers illegally enter a residence without a warrant, they are no longer police officers, they are trespassers. Let’s say you or I illegally break into someone’s home. The homeowner reaches for a gun and, reasonably fearing for our safety, we shoot the homeowner. We’d almost certainly be both criminally and civilly liable. The County of Los Angeles believes that when police officers do the same thing, they should be neither. Second, the argument that to uphold the provocation doctrine would somehow make police officers less likely to use lethal force when their lives are at risk after they’ve mistakenly violated the Fourth Amendment just doesn’t pass the smell test. If the officers’ violation wasn’t intentional, they likely wouldn’t know until well after the incident that what they did was illegal. In the Mendez case, the provocation doctrine was in effect. It certainly didn’t stop the deputies from opening fire on the Mendezes. (If only it had.)
Third, in nearly every jurisdiction in the country, police officers are indemnified in cases like this one. So even if the Supreme Court rules against the officers in Mendez, the award won’t come out of their pockets, it will come from Los Angeles County. The hope here is that such awards persuade the county to better train its officers. So even if financially penalizing cops for damage inflicted that was the proximate cause of a Fourth Amendment violation somehow could deter cops from committing such violations in the future, it wouldn’t matter, because cops in these cases rarely suffer any financial penalty. There have been a few cases in which cops found to have committed egregious abuses were hit with punitive damages, or where a municipality refused to indemnify. But it’s rare. At worst, the police officers might suffer some indignity or public embarrassment at being named in a lawsuit. And yet despite widespread indemnification, attorneys for police in these cases still argue that finding civil liability will alter cops’ decision-making process as if they themselves would be paying out any damages.
In the end, if the Supreme Court finds that these two deputies aren’t liable, the only people who will suffer will be Angel and Jennifer Mendez. These weren’t criminals. They weren’t harboring the rogue parolee. They did nothing wrong. The two deputies violated their Fourth Amendment rights not once, but twice. Even if they had obtained a warrant, the justification for their barging into the Mendez home was weak at best. Angel Mendez reached for his gun not even to shoot or point it at the deputies, but merely to move it. In response, the deputies shot the couple a combined seven times. Angel Mendez lost part of his leg. This couple did nothing wrong. They suffered pretty severe injuries. And yet it’s possible that they’ll get nothing for it.
The saving grace for the Mendezes might be the current lineup of the court. The one option that seems off the table entirely is applying the provocation doctrine to the entire country. Striking down the doctrine also seems unlikely, given that Roberts and Alito don’t think the case requires it.
The most likely outcome: Everything stays as it is. The U.S. Court of Appeals for the 9th Circuit upheld a jury award to the Mendezes of $4 million. For the court to overturn that, Roberts and Alito would need Justices Clarence Thomas and Anthony M. Kennedy to join them, along with one of the four left-leaning justices. Thomas seems likely. Kennedy seemed uncomfortable with the provocation doctrine, but also seemed to want to find some way to make the Mendezes whole.
But the Mendezes could also lose. While the more liberal justices seemed sympathetic to the Mendezes’ case at first, even they seemed at least somewhat convinced by Alito and Roberts as the arguments went on. A tie vote would uphold the 9th Circuit ruling on the award, but have little impact on future cases. And it’s worth noting again that had this happened in any other federal district, the couple would never have gotten this far.
However the case comes down, L.A. County v. Mendez is a powerful illustration of how the courts have made it nearly impossible to win damages against police officers, even when the victims were severely harmed and had no culpability themselves, and even when the courts agree that the officers clearly violated the Constitution.