In the

Supreme Court of the United States

COUNTY OF LOS ANGELES.,  Petitioner,

v.

ANGEL MENDEZ AND JENNIFER LYNN GARCIA, Respondents.

 

BREIF FOR PETITIONER

QUESTIONS PRESENTED

Two Sheriffs Deputies searching for an armed fu­gitive opened the door to a backyard shack to be con­fronted by a man pointing a gun at them. Fearing for their lives, they discharged their weapons. The courts below found-and the parties all agree-that the shooting was reasonable under the Fourth Amend­ment framework this Court set out in Graham v. Con­nor, (1989). Nevertheless, the Deputies have been held personally liable under the Ninth Cir­cuit's so-called "provocation rule," on the ground that they provoked the confrontation by failing to secure a warrant to search the shack. The questions presented are:

1. 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?

2. 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 Plain­tiffs pointed a gun at them and the outcome would not have changed if the Deputies had a warrant?

CONSTITUTIONAL & STATUTORY PROVISIONS INVOLVED

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or af­firmation, and particularly describing the place to be searched, and the persons or things to be seized.

 

42 U.S.C. 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Co­lumbia, subjects, or causes to be subjected, any citizen of the United States or other per­son within the jurisdiction thereof to the dep­rivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

INTRODUCTION

It was a tragic happenstance.

Petitioners Los Angeles County Sheriffs Deputies Christopher Conley and Jennifer Pederson (the "Dep­uties") were dispatched to a specific address to locate a fugitive considered armed and dangerous. In the backyard, they encountered a run-down shack. The district court found-and for present purposes, it is undisputed-that the Deputies had probable cause to believe the fugitive was in the shack. So they opened the door to peer inside. What they saw was every of­ficer's nightmare: a man pointing a gun at them at point-blank range. What they did is what every officer is trained to do: They fired their weapons in self-de­fense. The courts below found-and all the parties agree-that this response was reasonable.

Yet, the Deputies have been hit with millions of dollars in personal liability for excessive force. Turns out, the man in the shack was not the fugitive, but a homeless man using the shack as shelter. He was not holding a rifle, but a BB gun. And he was not inten­tionally pointing it at the Deputies, but shifting it as he sat up thinking the homeowner was at the door. The Deputies peered in at the worst possible moment.

Everyone agrees that the Deputies did not use ex­cessive force under the standard this Court has been following for 25 years. Under Graham v. Connor, a court must put itself in the shoes of a reasonable of­ficer on the scene and, without the benefit of hind­sight, evaluate the reasonableness of the Deputies' conduct "at the moment" they applied force. The only way the Ninth Circuit was able to find the Deputies liable for their reasonable use of force was by rolling the clock back to before that critical moment. The court invoked its so-called "prov­ocation rule," which holds an officer liable for the use of otherwise reasonable force if the officer provoked a violent confrontation.

The supposed "provocation" here was that the Deputies did not secure a search warrant before open­ing the shack door. Never mind that there was noth­ing provocative about that or about the manner in which they opened the door; the Ninth Circuit held that no actual provocative conduct is required, just a constitutional violation that was in the chain of events eventually leading to the shooting. And never mind that the shack's occupant was not provoked to violence at all.

As this Court has observed, circuits have "sharply questioned" the provocation rule. The vast majority of them reject it. This Court should as well. Officers need to be free to make split­ second decisions to respond to threats of force without hesitating to replay all their prior actions to assess whether someone might later accuse them of provok­ing the confrontation.

This Court should also reject the Court of Appeals' alternative holding that the failure to secure a search warrant proximately caused the shooting. Search warrants are designed to protect privacy interests; they are not designed to prevent injuries due to use of force. And the outcome here would have been the same even if the Deputies had a warrant in their back pocket.

STATEMENT OF THE CASE

Police Search For A Wanted, Armed-And-Dan­gerous Parolee

On the morning of October 1, 2010, a Los Angeles police officer reported that he believed he had seen a missing parolee at a grocery store. The parolee, Ronnie O'Dell, was wanted on felony charges, including child endangerment and evading capture. Twelve officers, including a special team charged with tracking and apprehending wanted pa­rolees, responded to the scene. They knew O'Dell "had evaded prior attempts to ap­prehend him" and was considered "armed and danger­ous." By the time they arrived, O'Dell was gone.

While the team was debriefing, an officer received a tip that O'Dell was spotted riding a bicycle in front of the nearby home of Paula Hughes. The team was shown a flyer that described O'Dell as "armed and dangerous" and listed his outstanding fel­ony charges. The officers then divided into two teams: one to the Hughes residence and the other to a different house on the same street that officers knew O'Dell had previously visited.

The team that went to the Hughes property con­sisted of five officers, including Deputies Conley and Pederson. Although the deputy who re­ceived the tip announced to the officers that a man named Angel lived in the backyard with a pregnant woman; Conley testified that he did not hear this announcement; Deputy Peder­son recalled hearing only that some people "some­times hung out in the back" of the house, not that they lived there. A third officer (not a party) testi­fied that she heard no announcement on the topic.

When the officers arrived at the Hughes house, "they observed a bicycle on the front lawn." The officer-in-charge assigned Deputies Conley and Pederson to clear the back of the property for the officers' safety, in case O'Dell was hiding there, and to cover the back door, in case O'Dell was in the house and attempted to escape.

The other officers knocked on Ms. Hughes's front door. Ms. Hughes refused to open the door, but she spoke with the officers, who told her that they were looking for O'Dell. While speaking to Ms. Hughes, one of the officers heard "running within the Hughes residence, toward the back of the house" and ''believed Mr. O'Dell was inside." They prepared to "ram" the door down, but Ms. Hughes opened the door and allowed them to enter. The officers looked through the house but did not find O'Dell.

The Deputies Fire In Response To A Drawn Gun

Meanwhile, Sheriffs Deputies Conley and Peder­son were searching the backyard. They were in uniform, and kept "their guns drawn because" they believed "O'Dell ... to be armed and dangerous," The backyard was a jumble of junk and sheds. A large, dirt-covered area was littered with "debris throughout," including "abandoned automobiles." The Deputies first encountered and cleared three storage sheds where O'Dell could have been hid­ing. Then they approached a small, windowless plywood shack with a wooden door.

As depicted, surrounding this shack were various odds-and-ends: a hand truck, a plastic locker with clothing, an office chair, an empty plastic tub, a step­ladder, another plastic tub with a trash bag lying on top, a hose, a shovel, and other miscellaneous items. A thin white wire, partially obscured by dirt and garbage, ran into the shack. An air conditioning unit, mounted into a hole, was on the opposite side of the shack, and therefore not visible to the Deputies.

The Deputies approached the shack's doorway. The shack had a screen door that was open, but its wooden door was closed. Neither Dep­uty "perceived the shack to be a habitable struc­ture"; rather, both "believed the shack to be simply another storage shed," like "the three ... that they had already searched. "Therefore, it was their perception that the only person who might have been in the shack would have been Mr. O'Dell, trying to remain hidden."

Deputy Conley opened the shack's wooden door and pulled back a blue blanket obstructing the door­way. The Deputies were instantly confronted with "the silhouette of an adult male ... holding-what they believed to be-a rifle." Deputy Pederson thought "whoever was in that shack ... is going to shoot us, and possibly kill one or both of us." Deputy Conley "thought to himself: This is where I'm going to die."

Deputy Conley yelled "Gun!" and both Deputies began firing at the man with the gun while backing away from the door. Consistent with their training, the Deputies fired until they per­ceived that "there was no longer a threat." Both Deputies stopped shooting with unused am­munition remaining in their weapons. The whole shooting lasted only 2-3 seconds.

It turns out the man holding the gun was not O'Dell but Respondent Angel Mendez. Mr. Mendez had been living in the shack with his then-girlfriend (now wife) Respondent Jennifer Garcia." The couple had been napping on a futon inside the shack. The gun Mr. Mendez pointed toward the officers was a black BB gun that "closely resem­bled a small caliber rifle." Mr. Mendez used it "to shoot rats, mice, and other pests." When the door opened, Mr. Mendez thought it was Ms. Hughes playing a joke, and he grabbed the gun next to him on the futon to move it as he sat up. In doing so, Mr. Mendez "pointed" the "BB gun rifle ... towards Dep­uty Conley." The district court found that in the shadows of the windowless, unlit shack, the Deputies "perceived Mr. Mendez holding the BB gun rifle," "reasonably believed that the BB gun rifle was a firearm rifle," and "reasonably believed that the man ... holding the firearm rifle ... threatened their lives."

The bullets hit Mr. Mendez in his forearm, back, hip, leg, and foot, requiring amputation of his right leg below the knee. Mrs. Mendez was shot in her right shoulder and grazed on the left hand. She was pregnant at the time of the shooting and later gave birth to a healthy boy.

The District Court Finds That The Deputies Used Reasonable Force But Nevertheless Holds Them Liable

Plaintiffs sued Deputies Conley and Pederson and Los Angeles County under 42 U.S.C. 1983. Plaintiffs claimed the Deputies infringed their Fourth Amendment rights by searching the shack without a warrant, not knocking and announcing their presence immediately before entering the shack, and employing excessive force. The district court ruled for the County on summary judgment.

The district court conducted a bench trial on the claims against the Deputies and found for Plaintiffs on their warrantless-entry and knock-and-announce claims. The court found as fact that the Deputies believed the shack was uninhabita­ble, uninhabited, and "simply another storage shed similar to the three ... they had already searched." Two other experienced officers (in addition to Deputies Conley and Pederson) stated that none of them perceived the plywood shack as a place where people might be living. Nevertheless, the court concluded that Deputies Conley and Pederson's sincerely held belief was "not reasonable," that they should have known the makeshift structure was a dwelling, The court then rejected the exceptions to the warrant requirement that the Deputies had invoked-including Ms. Hughes's con­sent, parolee search, exigency, and emergency cir­cumstances. The court concluded that Deputy Conley violated Plaintiffs' clearly estab­lished right to be free from an unreasonable search. Because "Deputy Pederson, however, did not search the shack," the district court did not hold her liable on the warrantless-entry claim.

As to the knock-and-announce claim, having found that the Deputies should have known the shack was a dwelling, the district court held that the Depu­ties were obligated to knock and announce their pres­ence a second time (after their colleagues had already knocked and announced at the front door of the Hughes house). The court also de­nied the Deputies qualified immunity, holding that the requirement to knock and announce at the shack was clearly established.

The district court awarded Plaintiffs only nominal damages of $1 against Deputy Conley on the warrant­less-entry claim and $1 against Deputies Conley and Pederson on the knock-and-announce claim. The court explained that Plaintiffs suffered no harm as a result of the warrantless-entry or knock­and-announce claims. The court elaborated that the damages Plaintiffs suffered as a result of the shooting were not compensable as part of the war­rantless-entry or knock-and-announce claims because Mr. Mendez's "act of pointing the BB gun at the Dep­uties would have superseded those claims as far as damage is concerned."

As to excessive force, the court found no "violation of Plaintiffs' constitutional right to be free from ex­cessive force" because the Deputies' "use of force was reasonable given their belief that a man was holding a firearm rifle threatening their lives." Indeed, the court noted that Plaintiffs had "conceded" as much in closing arguments. court explained that "if the only issue in the case was simply what oc­curred at the moment of the shooting, then the verdict would have been in favor of the defendants."

The court nevertheless found for Plaintiffs on their Fourth Amendment excessive-force claim. The court invoked the Ninth Circuit's provocation rule, that an officer "may be held liable for his otherwise defensive i.e., reasonable use of deadly force" if he "intentionally or recklessly pro­vokes a violent confrontation" through "an independ­ent Fourth Amendment violation."

Since the court had already found Deputy Conley liable on the warrantless-entry claim and both the Deputies liable on the knock-and-announce claim, the court concluded that the Deputies had thereby "pro­voked" the shooting, and so their "oth­erwise reasonable (and lawful) defensive use of force became unreasonable as a matter of law." It did not matter that the purported provocation was not intentional, or that the only reason the court considered the conduct "reckless" was that the search was "unreasonable under the Fourth Amendment". It likewise did not matter that the purported provoca­tion was not violent-it consisted of the Deputies en­tering the shack by merely opening the door and moving the blue blanket without first knocking and announcing-nor that it provoked no violence from Mr. Mendez, who testified that he picked up the BB gun merely to move it as he sat up in bed. For the district court, all that mattered was that the warrantless entry and failure to knock and announce were "predicate ... constitutional viola­tions that rendered the Deputies' 'otherwise rea­sonable defensive use of force unreasonable.'"

The court awarded damages of $4.1 million for Plaintiffs' excessive-force claim, even though it had found the use of force reasonable.

The Court Of Appeals Upholds The Award

The Court of Appeals reversed in part and af­firmed in part. It reversed the judgment on the knock­and-announce claim. Noting that officers had "announced their presence at Hughes's front door," the court held that it was not clearly es­tablished at the time of the events in question that "the deputies needed to announce their presence again before entering the shack in the curtilage." The Deputies were therefore entitled to qualified immunity.

On the other hand, the court affirmed the district court's holding that Deputy Conley's warrantless en­try of the shack violated Plaintiffs' clearly established Fourth Amendment rights.

The Court of Appeals also affirmed the district court's principal holding on excessive force. The court stressed that "the shooting itself was not unconstitu­tionally excessive force under the Fourth Amend­ment." But it nonetheless affirmed the judgment against the Deputies, invoking the Ninth Circuit's doctrine that a constitutionally reasonable use of force becomes unreasonable if "an officer inten­tionally or recklessly provokes a violent confronta­tion" by committing "an independent Fourth Amendment violation."

The Court of Appeals, however, did not require any actual provocation, much less provocation of "a violent response." As the court observed, Mr. Men­dez was "not 'provoked,'" did not respond violently, and "did not intend to threaten the officers with his gun"-he simply sat up in bed with his gun pointed towards the door. For the Court of Appeals, a prov­ocation negating the otherwise justifiable use of force "simply requires that the deputies' unconstitutional conduct created a situation which led to the shooting." Un­der this approach, the court found its provocation rule applicable.

The Court of Appeals did not make any separate determination that any provocation was "intentional or reckless." Rather, the court explained that, ''be­cause qualified immunity protects all but the plainly incompetent or those who knowingly violate the law, our determination that the deputies are not entitled to qualified immunity on the warrantless entry claim necessarily indicates that they acted recklessly or in­tentionally with respect to Mendez's rights."

The court ended with an alternative holding that even if there were no provocation rule, the Deputies were still "liable for the shooting under basic notions of proximate cause." Though the court had already held that the knock-and-announce claim could not be the basis for 1983 liability because it implicated no violation of clearly established law, the court found proximate cause because "where as here Mendez was holding a gun when the officers barged into the shack unannounced, it was reasonably fore­seeable" that the Deputies' "unconstitutional entry" would lead to a shooting. On this basis, the court held both Deputies li­able for the full $4.1 million award.

SUMMARY OF THE ARGUMENT

I. Analysis of Plaintiffs' excessive-force claim is straightforward under the approach this Court has followed for 25 years. "The 'reasonableness' of a par­ticular use of force," this Court has emphasized, "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight" from "the peace of a judge's chambers." Reasonableness must therefore be evaluated as of "the moment" the force was used.

There is no dispute about the result of this Fourth Amendment reasonableness analysis on these facts. This Court has squarely held: "Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to ... use deadly force." The district court found as fact that Mr. Mendez was pointing the BB gun "towards" the Dep­uties; the Deputies saw Mr. Mendez "holding the BB gun rifle"; they "reasonably believed that the BB gun rifle was a firearm rifle"; they "reasonably believed that ... Mr. Mendez holding the firearm rifle ... threatened their lives"; accordingly, the Deputies "fired their guns in the direction of Mr. Mendez, fear­ing that they would be shot and killed" otherwise. That is the end of the matter.

II. The Court of Appeals held that the Deputies' indisputably reasonable use of force to protect them­selves from the perceived threat of death became un­reasonable under a provocation rule that this Court has never condoned. The provocation rule holds offic­ers liable for their reasonable use of defensive force to protect themselves and others from the imminent pro­spect of bodily injury or death if some officer first com­mitted an act that provoked no violent response but simply ended in a situation where the officers had to use force.

A. Most basically, the provocation rule is contrary to the Fourth Amendment because it declares that the use of force violates the Fourth Amendment even when the force was reasonable under-and therefore in compliance with-the Fourth Amendment. The provocation rule also overlooks that a significant com­ponent of the Fourth Amendment reasonableness analysis is the "temporal perspective of the inquiry." This Court's recent post-Graham ex­cessive-force cases illustrate that the officer's actions before the seizure-even in the seconds immediately before the seizure-are not relevant to the reasona­bleness of the seizure.

This Court's repeated emphasis on the "moment" of the seizure in its excessive-force cases serves an im­portant practical purpose, which the provocation rule squanders. The "reasonableness" inquiry under the Fourth Amendment is designed to "allow for the fact that police officers are often forced to make split-sec­ond judgments-in circumstances that are tense, un­certain, and rapidly evolving."

B. The whole dynamic the provocation rule cre­ates is similarly inconsistent with critical qualified immunity protections. Under the provocation rule, a court imposes liability merely because there was "an independent Fourth Amendment violation," without ever asking whether the violation in question was a violation of clearly established law. This is no abstract concern. Although the Court of Appeals' analysis is opaque at points-particularly with regard to the re­lationship between the provocation rule and its cau­sation analysis-the court ultimately imposed liability here based largely on the Deputies' legally immunized conduct: the Deputies' failure to sepa­rately knock and announce at the shack.

C. The Court of Appeals' provocation rule is also invalid because it does not require proximate cause ­only but-for cause. Plaintiffs will almost always be able to meet that low bar. Officers will thus face po­tential liability for everything that happens after a predicate constitutional violation, however remote or unforeseeable the injury.

III. The Court of Appeals hedged its bet on the provocation rule by adding that "even without relying on our circuit's provocation theory," it would hold the Deputies "liable for the shooting under basic notions of proximate cause." This analysis is wrong as a matter of law.

A. Injuries resulting from the subsequent use of objectively reasonable force are not within the scope of the risk of the failure to secure a warrant. Plain­tiffs' only actionable constitutional claim was the fail­ure to secure a warrant before searching the shack. A search warrant is not, however, directed at prevent­ing physical injuries. One would not ordinarily say, ''You better get a search warrant, or else people will get hurt." That is why the district court awarded only nominal damages for the Deputies' failure to secure a warrant-an acknowledgment that the violation did not proximately cause their physical injury.

The Court of Appeals at no point identified the risks the warrant requirement protects. Rather, the court skipped that critical step and merely held that it was "reasonably foreseeable" that Mr. "Mendez would be holding a gun when the officers barged into the shack unannounced." Here, again, the Court of Appeals was imper­missibly leveraging immune conduct-the failure to knock and announce-into liability for a separate con­stitutional violation.

B. Even if Plaintiffs' injuries were within the scope of risk of the warrant requirement, they still could not establish proximate cause because Mr. Mendez's act of pointing a gun at the Deputies was a su­perseding cause of Plaintiffs' ensuing injuries, and therefore cut off any possibility of liability for the shooting. Under this principle, when an individual points a gun at a law enforcement officer, that is a superseding event that breaks the chain of causation from prior unlawful conduct. Officers should not and cannot be held liable for the damages resulting from their ensuing reasonable response.

 CONCLUSION

The Court should reverse the judgment of the Court of Appeals.