Back in March, I wrote about the Supreme Court case Los Angeles v. Mendez, which centered on whether the court would adopt the Ninth Circuit’s “provocation rule”. This rule held that law enforcement officers could be held liable even when they reasonably used force on a citizen, as long as they unreasonably provoked the scenario necessitating the deadly force in the first place. Well, today the court issued its opinion, unanimously rejecting the Ninth Circuit’s provocation rule while nonetheless leaving hope for the plaintiffs on remand.
As a refresher, the case involves two sheriff’s deputies who entered a residential property without a warrant. They then encountered a shack located in the backyard in which the plaintiffs Angel Mendez and Jennifer Garcia were living. The officers, who had not identified themselves as officers, barged into the shack unannounced. Mendez, who happened to be holding a BB gun to ward off rats and pests, sat up. The officers, upon seeing Mendez with a gun, fired upon Mendez and Garcia, injuring them. At trial, a jury found that the officers had not committed excessive force. However, the jury did find the officers liable under the Ninth Circuit’s “provocation” rule, which had been fiercely criticized in other circuits.
Today, Justice Alito wrote for an 8-0 unanimous court (without Justice Gorsuch, who took the bench after oral argument). The Court outrightly and forcefully rejected the provocation doctrine, finding that the Ninth Circuit had “mistakenly conflate[d] distinct Fourth Amendment claims.” In doing so, the Court reiterated that “reasonableness is always the touchstone of Fourth Amendment analysis”, and that thus no other conduct by the officers could transform their reasonable use of force into a Fourth Amendment claim. “If there is no excessive force claim under Graham [v. O’Connor], there is no excessive force claim at all.”
To be clear – and this is critical – the Court did not reject the plaintiffs’ unreasonable search and seizure claim, nor did it preclude the plaintiffs from recovering for damages – even damages stemming from the shooting – under such a claim. In fact, the Court explicitly acknowledged that the officers would be liable for the proximate cause of their unreasonable search and seizure; however, the Court declined to spell out what that standard would be or whether the plaintiffs here could recover under such a standard. Those issues, rather, are now to be decided by the lower courts.
That Justice Alito wrote the opinion is interesting. His opinion closely tracks – and at one point is identical – to his language in a prior case from when he was on the Third Circuit. In my initial post on this case, I devoted a section to the issue of proximate cause and cited heavily to then-Judge Alito’s Third Circuit opinion in Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995). There, law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. The lower court instructed the jury that they need not determine whether the force used was reasonable, because the unreasonableness of the search rendered the subsequent use of force automatically unreasonable. Then-Judge Alito, writing for the Third Circuit, strongly rejected the conflation of these two claims, reinstated the excessive force claim, and remanded on both the excessive force and unreasonable search and seizure claims. Further, Judge Alito also held that the plaintiff’s recovery of damages under the unreasonable search and seizure claim was determined by “basic principles of tort law,” including proximate cause; thus, if the jury believed that the conduct of the officers in unlawfully entering the home was a proximate cause of the shooting (even if the force was reasonable), then the officers would be liable for the shooting under the search and seizure. The case was then remanded for a jury trial.
Then-Judge Alito then concluded his analysis with the following comments regarding proximate cause and the interplay between excessive force and unreasonable search claims, which may give you deja vu:
“If at a retrial in this case the jury decides that the troopers’ entry was unlawful, it will be necessary to determine how much of the injury suffered by Bodine was ‘proximately’ or ‘legally’ caused by the illegal entry, and we express no view on this question at this time. We merely emphasize that this determination must be made and that the illegal entry and unlawful force claims must be kept separate. Thus, if the troopers are found to have entered the Bodine residence illegally, they should be held liable for the harm proximately caused by the illegal entry. Similarly, if the troopers are found to have used unlawful force, they should be held liable for the harm proximately caused by this use of force. The harm proximately caused by these two torts may overlap, but the two claims should not be conflated.” (emphasis mine).
This language, and particularly the language in bold, will surely look familiar to those who have read today’s opinion in Mendez. Here, Justice Alito wrote that the Mendez plaintiffs may still have a claim if the shooting was a proximate cause of the initial unreasonable search and seizure:
“[B]oth parties accept the principle that plaintiffs can—subject to qualified immunity—generally recover damages that are proximately caused by any Fourth Amendment violation. Thus, there is no need to dress up every Fourth Amendment claim as an excessive force claim. For example, if the plaintiffs in this case cannot recover on their excessive force claim, that will not foreclose recovery for injuries proximately caused by the warrantless entry. The harm proximately caused by these two torts may overlap, but the two claims should not be confused.” (emphasis mine).
Essentially, Justice Alito mirrored a prior opinion of his in the Circuit Court in a similar fact pattern, going so far as to essentially copy and paste his own prior writing.
The only major difference between Justice Alito’s Mendez opinion and Judge Alito’s Bodine opinion is what they did next. Judge Alito laid out the framework for a proximate cause analysis, taking pains to stress that 1) the officers are only liable for the proximate cause of their unlawful entry into the home, not for the proximate cause of any of their constitutional conduct, and 2) that officers who illegally enter a suspect’s home “would not be liable for harm produced by a ‘superseding cause”, but “would be liable for the harm ‘proximately’ or ‘legally’ caused by their tortious conduct.”
In Mendez, Justice Alito only went half way, explaining briefly that the Ninth Circuit erred in its proximate cause analysis by once again conflating the officers’ constitutional conduct and their unconstitutional conduct, but refusing to go further. Like in Bodine, Justice Alito noted that the key is to isolate the unconstitutional conduct and then track the proximate cause of that particular conduct, not any other conduct by the officer. However, Justice Alito declined to further develop the proximate cause framework, noting that the Supreme Court has previously “declin[ed] to draw the precise boundaries of proximate cause in the first instance.” It seems that Justice Alito rightly sees his role as different than that of Judge Alito.
Finally, it bears noting that the court did not address at all a hot button issue at oral argument, namely how this case is impacted by the Second Amendment right to bear arms. After all, the only reason Mendez was shot was due to his lawful and constitutional possession of a firearm in his home. However, tiptoeing around this issue may have been a way to avoid fracturing the court’s unanimity. Plus, the issue seems to be preserved within the plaintiffs’ argument that their behavior did not constitute a superseding cause of the shooting, since their conduct was entirely lawful and proper. Thus, we may see that issue again in this case before the high court, albeit in a more focused discussion of proximate cause.