In March, I wrote about the oral arguments before the Supreme Court in Los Angeles County v. Mendez, which was a challenge to the “provocation rule,” a legal concept exclusive to the U.S. Court of Appeals for the 9th Circuit. The rule holds that if a police officer recklessly promotes a potentially violent confrontation with a Fourth Amendment violation, the officer is liable for any injury caused by a subsequent use of force that results from that confrontation, even if the use of force itself was reasonable.
In the Mendez case, two police officers entered a residence without knocking or announcing, and without first obtaining a warrant. They were looking for a parolee. An informant had spotted someone who resembled the parolee riding a bike near where the incident occurred. When the door opened, Angel Mendez reached for a pellet gun he kept beside the bed. The two police officers then opened fire, severely injuring both Mendez and his pregnant wife. The 9th Circuit held that because the officers’ warrantless entry was a Fourth Amendment violation, and because the injury resulted from that violation, under the provocation rule, the officers are not entitled to qualified immunity. On Tuesday, the U.S. Supreme Court vacated that decision, holding that there is Fourth Amendment basis for the provocation rule.
The provocation rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. . . . The operative question in such cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” . . . When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. The provocation rule, however, instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims.
The 9th Circuit also ruled that the officers’ actions were the “proximate cause” of the injuries, finding that violence is a foreseeable result of a sudden entry without announcement. But the Supreme Court said that analysis was wrong, too. The officers’ failure to knock and announce was a separate violation from their failure to obtain a warrant. On the failure to knock and announce, the appeals court ruled that the officers did violate Mendez’s rights, but that the officers were entitled to qualified immunity because it wasn’t firmly established that what the officers did was unconstitutional. (This is because the Mendezes lived in a shack in the back yard of another home, not in a residence on a separate property.) It was the failure to procure the warrant that was the violation for which the officers did not have immunity. Unfortunately, that isn’t the violation that caused their injuries. Hence, the provocation rule, which the Supreme Court has now deemed an anachronism.
The unanimous opinion, written by Justice Samuel Alito, didn’t completely bar the Mendezes from getting compensated. Instead, the court remanded the case back to the U.S. Court of Appeals for the 9th Circuit and ordered that court to do an analysis on whether the failure to obtain a warrant may have been a proximate cause of the Mendez injuries.
But it’s hard to see how a judge could make that determination. The alleged fugitive here was described as violent. He was possibly recently seen riding a bicycle in the area. Even if the officers had obtained a warrant first, if they thought he was in the Mendez home, they likely would have tried for a no-knock warrant, or entered without knocking or announcing, anyway. (Given that the parolee was descried as dangerous and was in flight, they almost certainly would have been covered by the exigent circumstance exception to the knock and announce requirement.) It was the failure to knock and announce that caused Mendez to reach for his gun, which then caused the police to fire. The only possibly argument I can see here is that if the cops had obtained a warrant, perhaps they’d have been unable to get a no-knock. Or perhaps the process of obtaining the warrant would have reminded them of the importance of knocking and announcing. Perhaps the judge wouldn’t have granted a warrant at all, given the scant evidence that the parolee was in either home. But it really seems like a stretch.
In a footnote, Alito also suggests that the Mendezes could recover if they can show that the officers’ actions were unreasonable under the “totality of the circumstances.” At first blush, this seems more plausible. The officers were acting on a vague and uncorroborated tip from an informant that, even if true, didn’t establish much of a link to the homes they ended up searching. The informant said a man fitting the parolee’s description was seen riding a bike in front of a house. The Mendezes’ shack was in the back yard of that house. If that’s enough to justify a search, the police could in theory search every home in the area, or at several homes adjacent to the home in question. As it turns out, the parolee wasn’t in either the Mendez home or the home of the woman who let them live in her back yard. In the end, we still go back to the fact that the failure to knock and announce is what caused the injury — not the failure to procure a warrant. And the courts already decided that the cops have immunity for that.
Angel and Jennifer Mendez were innocent. No one disputes that. Angel Mendez reacted as anyone might if a stranger were to burst into his home unannounced. (He actually says he wasn’t reaching to use the gun but was merely moving it so he could get up from the bed.) They weren’t harboring a fugitive. They did nothing wrong.
The cops, on the other hand, engaged in some incredibly sloppy policing that nearly got someone killed. They violated the Mendezes’ Fourth Amendment rights not once, but twice. Then they filled the couple with bullets after they mistook Angel Mendez’s reach for his pellet gun as a threat. Angel Mendez was shot five times, and lost his right leg below the knee. Jennifer Mendez was shot in the back. That was 6½ years ago. They still haven’t seen a dime. And after Tuesday’s ruling, it seems unlikely that they ever will.