In the

Supreme Court of the United State

COUNTY OF LOS ANGELES.,  Petitioner,

v.

ANGEL MENDEZ AND JENNIFER LYNN GARCIA, Respondents.

 

BREIF FOR RESPONDENT

1. Does the legal framework set out in Graham v. Connor apply to actions by police that foreseeably create a need for the use of force?

2. In an action under 42 U.S.C. 1983, where a house search that violates the Fourth Amendment results in the shooting of an innocent resident who did not know that the intruders were sheriffs deputies, does a resident's non-culpable response to the intrusion constitute a superseding cause that bars relief for the residents' injuries?

INTRODUCTION

This appeal concerns a complex and deeply troubling line of cases. In many situations in which police are called upon to use lethal force, the victim was at fault, having created the need for such force by shooting at officers, refusing to put down a weapon, or other highly culpable conduct. But there have been repeated instances in which the police, not the victim, created the need (or more often merely the apparent need) for force, resulting in death or grave injury to an entirely blameless, law-abiding individual. In some instances, as here, police did so by committing a constitutional violation that foreseeably led to the apparent (but mistaken) need for the use of force. This problem arises most often when police fail to identify themselves as law enforcement officers. In some of those cases, the unidentified officers have entered private homes and startled innocent residents ­with tragic consequences.

That is precisely what happened here. Both courts below found that Petitioners' conduct was unconstitutional and violated clearly established law, and those determinations are now judicially final. As a direct result of Petitioners' unlawful conduct, Mr. Mendez was shot numerous times, his right leg was amputated below the knee, he can no longer work, yet has substantial, ongoing medical expenses, and Mrs. Mendez (who was pregnant at the time) was shot in the back and also has significant medical expenses.

In recent years, the Department of Justice has commendably attempted to deal with this type of problem by entering into a series of consent decrees that require municipal police departments to take steps to reduce police-created need for force. In its January 2017 report on the Chicago Police Department, the Justice Department similarly objected to practices there, which by needlessly creating a need for force, had resulted in a number of civilian deaths. Those decrees and related proceedings would rest on a solid legal foundation if this Court were to hold, as Respondents urge, that the reasonableness standard in Graham v. Connor (1989), applies to police action that foreseeably leads to the need for force. Such a holding would also protect police and the public by imposing liability where, as here, an officer's objectively unreasonable conduct foreseeably leads to a violent confrontation.

STATEMENT

1. The shooting of Mr. and Mrs. Mendez arose out of a search for someone else, Ronnie O'Dell, with whom they had no confirmed connection. O'Dell was a parolee­-at-large, meaning that he was out of compliance with the terms of his parole. Apprehension of parolees-at-large was the responsibility of the Target Oriented Policing ("TOP") team in the Los Angeles County Sheriffs Department. The TOP team had an arrest warrant for O'Dell, but no search warrant to look for him in any house.

Petitioners-Deputies Christopher Conley and Jennifer Pederson-were not members of the TOP team; on the day in question, they were assigned to work with that unit in the search for O'Dell. Prior to October 1, 2010, Deputies Conley and Pederson did not have any information regarding Mr. O'Dell. On October 1, 2010, Conley and Pederson were given no information indicating that O'Dell was armed or dangerous.

The deputies looking for O'Dell first went to a store where he reportedly had been seen. Despite Petitioners' claim that O'Dell was armed and dangerous, no effort was made to clear the store, call a SWAT team, or take any other precautions before searching it. O'Dell was not found in the store. At about this time, one of the deputies, Claudia Rissling, told the other deputies that she had received by phone a tip from an informant that O'Dell had been seen riding a bicycle in front of a nearby house. Rissling had a pre-existing interest in that location and had conducted surveillance and observed who lived there. Rissling briefed Conley, Pederson, and the others about the location. There were, she told them, two residences: a larger house near the street and a smaller home in back.

Rissling also told Conley and Pederson-and they heard her say-that the Mendezes lived in the smaller home. Addressing that precise issue, the district court found:

Deputy Rissling announced to the responding officers that a male named Angel (Mendez) lived in the backyard residence with a pregnant lady (Mrs. Mendez).... Deputies Conley and Pederson heard Deputy Rissling make this announcement. Deputy Pederson testified that she heard the announcement. Deputy Conley testified that he did not recall any such announcement. Either he did not recall the announcement at trial or he unreasonably failed to pay attention when the announcement was made.

Substantial evidence supports these findings.

In an interview conducted after the shooting, Conley informed the investigating officer that he had been provided "info persons in rear shed." In the transcribed interview, Conley stated: "we received information that there were sheds in the back yard and that someone might be staying in one of the sheds." Pederson, too, told the investigator that he had been informed that "[p]ersons are known to loiter or stay in sheds on prop" and that both she and Conley were advised that "there was a shed back there"­referring to the backyard-and that "sometimes people stay in that shed or hang out in that shed". Deputy Rissling likewise testified: "I conducted a briefing and ... advised the deputies that ... there [were] sheds in the backyard and there was a male Hispanic named Angel that lived in one of the sheds along with a pregnant lady."

Sergeant Gregg Minster led the group that went to the front of the main house. As the district court found:

Sergeant Minster banged on the security screen outside the front door.... From within the residence, a woman (Ms. Hughes) asked what the officers wanted.... Sergeant Minster asked Ms. Hughes to open the door .... Ms. Hughes asked if the officers had a warrant .... Sergeant Minster said that they did not, but that they were searching for Mr. O'Dell and had a warrant to arrest him.

Minster "then heard running within the Hughes residence, toward the back of the residence." Minster decided to break into the house, and got a pick and ram from a police car. Minster again asked Hughes to permit the officers to search her home, and now Hughes-knowing that the police were about to break down her door-agreed. The district court found that her consent was coerced. After the deputies entered the house, Hughes "was pushed to the ground and handcuffed" and then confined in a patrol car. The search revealed no one else in her home.

Meanwhile, in the back yard, Conley and Pederson, after inspecting three small storage sheds along the side of the house, came to the shack where Respondents lived. Specifically addressing Petitioners' arguments regarding the shack, the district court found that Conley and Pederson "could not have 'reasonably assumed' that the shack was another storage shed." That was so, the court explained, for three reasons:

First, Deputies Conley and Pederson differentiated (or should have differentiated) the shack from the three storage sheds next to the Hughes residence. The shack was located in a different area of the rear of the Hughes property at a distance from the Hughes residence and the storage sheds. The storage sheds were metal. The shack was wood.

Second, Deputies Conley and Pederson observed (or should have observed) a number of objective indicia demonstrating that the shack was a separate residential unit: the shack had a doorway; the shack had a hinged wooden door and a hinged screen door; a white gym storage locker was located nearby the shack; clothes and other possessions also were located nearby the shack; a blue tarp covered the roof of the shack; an electrical cord ran into the shack; a water hose ran into the shack; and an air conditioner was mounted on the side of the shack.

Third, and importantly, Deputies Conley and Pederson had information that a man and woman lived in the rear of the Hughes property. In light of this information ... Deputies Conley and Pederson could not have "reasonably assumed" that the shack was another storage shed.

While Petitioners testified to a contrary perception, the district court did not find that testimony persuasive: "having listened to the testimony and examined numerous photographs of the Hughes property, the Court finds that this perception of Deputies Conley and Pederson was not reasonable." During the post­-trial hearing to announce the decision, the district court likewise found that "the most important issue in the case ... was whether the failure of the deputies to recognize the shack as a dwelling was reasonable. And I have found and do now find that it was not."

Petitioners continue to devote considerable effort to describing evidence regarding this issue, but they do not suggest that the district court's findings were reversible error or that the existence of any such error would be within the scope of the question presented. Nor are the district court's findings unsupported by evidence: the air conditioner can easily be seen in the photographs, and the electrical cord, water hose, and white gym storage locker are plainly visible in the photographs.

Although the officers who wanted to search the main house had asked permission to do so, Conley and Pederson made no such request at the entrance to the Mendezes' home. Instead, as the district court found, Conley simply "opened the door to a dwelling in which he knew-or should have known-people lived." As he entered the home, Conley did not identify himself as a police officer; he was completely silent. Because the Mendezes' home was only seven by seven feet, a reasonable person would have known that anyone inside would be only a few feet away when he entered. Conley also could have foreseen that the interior of the windowless shack might be dark, and Conley testified that his gun was drawn when he entered and that there was a light on the gun.

When Conley began to enter the Mendezes' home, Mr. and Mrs. Mendez were resting on a futon with Mr. Mendez positioned closer to the door. Mr. Mendez had next to him a BB gun rifle, which he used to shoot at pests. "As the wooden door opened, Mr. Mendez picked up the BB gun rifle to put it on the floor of the shack so that he could put his feet on the floor of the shack and sit up." Sadly, Conley could not tell that what Mendez was holding was a BB gun, and he mistakenly concluded that Mendez was holding a firearm with hostile intent.

Conley then shouted "gun," and both deputies began firing their weapons into the Mendezes' home. The deputies fired a total of 15 bullets. "Mr. Mendez was shot in the right forearm, right shin, right hip/thigh, right lower back, and left foot. Mr. Mendez's right leg was amputated below the knee. Mrs. Mendez was shot in the right upper back/clavicle, and a bullet grazed her left hand." Badly injured, Mr. Mendez shouted to the deputies, "I didn't know it was you guys. It was a BB gun, I didn't know."

O'Dell was not in the shack or captured elsewhere that day.

2. Mr. and Mrs. Mendez brought this action against the County of Los Angeles and the two deputies, asserting both unreasonable search and excessive force claims. Starting with the Mendezes' unreasonable search claim based on the deputies' entry into the Mendezes' home without consent or a warrant, the district court found that the Mendezes' shack was a home within the protections of the Fourth Amendment and that Conley's entrance into the home violated the Fourth Amendment. The deputies had no warrant to search the home and had not obtained consent to do so. The district court concluded that the search did not fall within any of the exceptional circumstances permitting such intrusions. The court further held that the deputies had violated the "knock and announce" rule.

As the district court correctly noted, the Mendezes also asserted two distinct excessive force claims.

First, Respondents contended that the deputies' conduct at the moment of the shooting­, evaluated without regard to the deputies' decision to enter the home, was by itself unconstitutional. The district court referred to this claim as "Fourth Amendment: Excessive Force (At the Moment of Shooting)."

Second, having effectively conceded the above claim, Respondents asserted "instead" that the deputies' actions constituted excessive force because they had created the incident that led to the need for force by entering their home in violation of the Fourth Amendment and without identifying themselves as police officers. The district court referred to this claim as "Fourth Amendment: Excessive Force (Provocation)." The district court found that Respondents had established this claim. The district court also found that the deputies' actions were the proximate cause of Respondents' injuries and that Mr. Mendez's action in.

Lastly, the district court turned to the issue of damages. Referencing California Gov't Code 825, the court had previously recognized that "through the direct operation of the government code -- the county will write the check." At the conclusion of the trial, the district court determined that the damages award would be roughly $4 million, which includes over $816,000 for medical bills and over $500,000 for future medical care for both Mr. and Mrs. Mendez and prosthesis upkeep and replacement for Mr. Mendez. At the post-trial hearing to announce the court's decision, the court expressed the hope that the amount of the award "will go a long way towards making you financially whole" and "restore ... the dignity and self­-sufficiency that you feel you have lost.

3. Petitioners appealed, and a unanimous Ninth Circuit panel affirmed the district court's damages award on two independent grounds.

First, the court of appeals agreed with the district court that ''because the officers violated the Fourth Amendment by searching the shack without a warrant, which proximately caused the plaintiffs' injuries, liability was proper."

Second, the court of appeals also held that "the deputies are liable for the shooting under basic notions of proximate cause." Like the district court, the court of appeals concluded that "the situation in this case, where Mendez was holding a gun when the officers barged into the shack unannounced, was reasonably foreseeable."

4. Petitioners thereafter filed a timely petition for rehearing en bane, which the Ninth Circuit denied.

SUMMARY OF THE ARGUMENT

I. The only causation issue before the Court is the one for which the Court granted certiorari: superseding cause. Because the lower courts' liability and proximate cause determinations are judicially final, the superseding cause issue-if decided in Respondents' favor­ would be wholly dispositive of the appeal and would eliminate the need to reach the constitutional issue raised by Petitioners' first Question Presented.

II. As to each of these issues, Petitioners' arguments fail:

A. In this context, for a victim's conduct to be a superseding cause of injury, the conduct must be unforeseeable or culpable. The district court repeatedly found that entering Mr. Mendez's home without warning could lead to a violent confrontation. The court also found that Mr. Mendez's conduct was not culpable-an issue that Petitioners in any event rightly conceded below. For these reasons, Mr. Mendez's conduct was not a superseding cause of Respondents' injuries.

B. The Ninth Circuit's consideration of events that precede the use of force is consistent with this Court's reasonableness test for deciding Fourth Amendment claims, including the required focus on the totality of the circumstances. Petitioners' proposed approach is not only inconsistent with the totality of the circumstances analysis, it leads to perverse and untenable results. Here, the deputies' pre-shooting conduct was objectively unreasonable (as well as unconstitutional) and foreseeably led to the use of force. If the Court reaches this constitutional issue, it should uphold the lower courts' liability rulings.

C. If the Court reaches the proximate cause issue (even though the issue is not fairly encompassed within the third Question Presented in the Petition), it should uphold the lower courts' rulings that Petitioners' unlawful conduct was a proximate cause of Respondents' injuries. Petitioners attempt to parse Respondents' claims and discern the underlying "purposes" of each constitutional right at issue. That analysis is both unnecessary and improper because Respondents prevailed on their excessive force claim and no one denies that gunshot wounds are within the scope of the risk created by an unlawful shooting. In any event, an additional purpose served by the warrant clause is to avoid serious confrontations because of uncertainty regarding the legal authority for a non­consensual search. For these reasons and others, Petitioners' proximate cause argument also fails.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Connor