The Supreme Court (Barely) Rules On Hernandez v. Mesa

A few months ago, I wrote about Hernandez v. Mesa, the case of a cross-border shooting of a Mexican teen by a U.S. Border Patrol agent. Today, instead of issuing a big opinion on the rights of aliens abroad or police shootings or extraterritorial jurisdiction, the quietly Court issued a per curiam slip opinion vacating the lower court’s ruling and remanding in the least exciting way possible.

When I wrote about this case last, I warned that the court might “punt[] like Ray Guy” or issue a very narrow ruling on Bivens grounds (I also suggested that the Court might also issue a big ruling on extraterritorial jurisdiction, so what do I know?). Well, that’s what they did. If you recall, in granting cert, the court added the question of whether plaintiff’s claims could be asserted under Bivens, even though the circuit court did not address that question below.

Today, the Court remanded the case back to the Court of Appeals. It reasoned that the Bivens question was an “antecedent” to the remaining (and more interesting) issues, yet the lower court did not have an opportunity to consider how the Supreme Court’s recent decision in Ziglar v. Abbasi may bear on the Bivens claim in this case.

This is most certainly a punt. Except for one tiny bit of substance (which I’ll get to in a second), this opinion did nothing but put the ball back in the lower court’s…court and instruct it to rule on Bivens this time around. This hurts the plaintiff’s chances, since Ziglar limited the availability of Bivens claims for plaintiffs.

There was, however, some substance to this opinion. In dealing with the Fifth Amendment claim, the Court of Appeals had held that the officer was entitled to qualified immunity because the Mexican teen had no connections to the U.S. and was not a U.S. citizen. However, this information regarding the teen was not actually known to the officer. Thus, because qualified immunity centers on the facts knowable to the defendant officer, and the officer did not know that the teen had no connections to the U.S., the lower court erred. However, all that earned the plaintiff was the ability to have his Fifth Amendment Bivens claim evaluated based on Ziglar too.

Justice Thomas briefly dissented, arguing that the Court should have just gone ahead and affirmed the lower court because the plaintiff had no Bivens claim. Justice Breyer, joined by Justice Ginsburg, dissented for an opposite reason: they held that the plaintiff did have valid constitutional claims, and they believed that the Court should have ruled as such and then remanded for consideration of the Bivens and qualified immunity issues. Breyer then appended to his opinion a 54-year-old drawing of the channel in question, as well a black and white photo from 1968 of President Johnson and Lady Byrd Johnson viewing the channel. For what its worth, the President is waiving to no one in particular, and the First Lady looks miserable.

This marks a disappointing end (for now, at least) to this case. It would have been quite interesting to see the Court square extraordinarily sympathetic facts with very thorny issues of immigration, police excessive force, and jurisdiction. However, resolving an interesting case that felt like a fun law school hypothetical was apparently not worth the potentially major doctrinal implications.

Wait, did I just call law school fun?

-Ryan

County of Los Angeles v. Mendez: The Ninth Circuit Going Rogue or Applying Conservative Legal Principles? (Wait, What?)

The case of Los Angeles v. Mendez, scheduled for oral argument this week, asks whether law enforcement officers can be held liable when they reasonably used force on a citizen, but nonetheless unreasonably created the scenario which gave rise to the need to use force in the first place. This case creates an interesting intersection of Fourth Amendment excessive force doctrine, search and seizure jurisprudence, tort law, protection of privacy in the home, and even the right to bear arms, and may present a rare case when conservative legal principles functionally expand police shooting liability.

I. HACK-A-SHACK

In Mendez, two Los Angeles Sheriff’s Deputies entered a residential property without a warrant. They then encountered a shack located in the backyard of the residential property, in which Plaintiffs Angel Mendez and his then-girlfriend (now-wife) Jennifer Lynn Garcia were living at the time.  Mendez heard the officers searching the backyard, but the defendants did not identify themselves as officers. The officers barged into the shack, unannounced. At this point, Mendez, who happened to be holding a BB gun to ward off rats and other pests in the shack, began to sit up. One of the officers, upon seeing Mendez with a gun, yelled “gun!”, and both officers then fired upon Mendez and Garcia, injuring them.

It is established that the law enforcement officers in question did not use excessive force in shooting Plaintiffs Mendez and Garcia after they saw Mendez holding a firearm (which turned out to be a BB gun) and beginning to sit up. However, the twist lies in the fact that while the officers acted reasonably in shooting the plaintiffs, said officers may have nonetheless violated Plaintiffs’ constitutional rights by acting in a manner which provoked or caused the armed confrontation between themselves and Plaintiffs.

II. EXCESSIVE FORCE 101

Excessive force cases are decided based on whether the force was reasonable, at the time of the shooting, from the perspective of the officer. Graham v. Connor, 490 U.S. 386 (1989). This issue of perspective is critical. Thus, regardless of the civilian’s actual intentions (or even the civilian’s actual conduct), if the officer reasonably perceived that he/she faced imminent risk of deadly harm, then the officer is legally permitted to shoot the civilian in question. Again, the reasonableness of the civilian’s conduct or intentions is irrelevant, as long as the officer reasonably believed that force was necessary.

 

III. NINTH CIRCUIT PROVOCATION DOCTRINE

At trial, the court found that the officers had not committed excessive force. However, the court did find the officers liable under a “provocation” theory, which has been adopted only in the Ninth Circuit. Under this doctrine, an officer may be held responsible for an otherwise reasonable use of force when the officer intentionally or recklessly provoked the violent confrontation in which the force was used, and the provocation was itself an independent Fourth Amendment violation. The Ninth Circuit upheld the jury’s verdict under its “provocation” doctrine, and also framed the Plaintiffs’ injuries as being reasonably foreseeable based on the initial unreasonable entry into the home:

“Under these principles, the situation in this case, where Mendez was holding a gun when the officers barged into the shack unannounced, was reasonably foreseeable. The deputies are therefore liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.”

Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016)

IV. CONSTITUTIONAL FRAMING

The case presents an interesting issue of framing. The Court has been very reluctant to expand theories of liability in Fourth Amendment police shooting cases and has frequently granted qualified immunity in novel law enforcement excessive force situations, ruling that the unconstitutional nature of the officers’ conduct was not clearly established. See, e.g., White v. Pauly, __ U.S. ___ (2017); Mullenix v. Luna, 577 U. S. ___, (2015); City and County of San Francisco v. Sheehan, 575 U.S. ___ (2015); Plumhoff v. Rickard, 572 U.S. ___ (2014).  

Thus, the idea of adopting a new “provocation” theory in excessive force cases, which exists only in the traditionally-liberal Ninth Circuit, may not seem appealing to the Court. However, even members of the conservative wing of the Supreme Court may be willing to acknowledge that when officers unconstitutionally enter a civilian’s home, those officers are liable for  harms proximately caused by that violation. That is where this case gets interesting – although the court may not want to create a “new” theory of liability, it may not have any issue applying the long-established concept of proximate cause to this particular context. In fact, certain conservative principles may form the basis for a ruling for the plaintiff here.

For example, conservative Justices have been especially protective against government intrusion into one’s home. As the late Justice Scalia wrote in Kyllo v. United States, a case barring the police from using thermal imaging to “view” inside one’s home without a warrant, “[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” 533 U.S. 27 (2001)(emphasis added). That case produced the idiosyncratic majority of Justices Scalia, Thomas, Ginsburg, Breyer, and Souter (three of whom are still on the bench), and entrenched the Court’s heightened protection of the home in Fourth Amendment jurisprudence.

Further, the conservative justices have been very willing to protect the right to bear arms in one’s home, which was of course what Mendez was doing which caused the officers to shoot him in the first place. In D.C. v. Heller, another Scalia opinion, the Court held with a 5-4 all-conservative majority that the Second Amendment protects the right to own a firearm in one’s home. The Second Amendment critically protects the right the bear arms in “the home, where the need for defense of self, family, and property is most acute.” 554 U.S. 570 (2008). The Court concluded, “[i]n sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment…”

Here, Mendez was possessing a weapon in his own home, which is constitutionally-permissible behavior. As a direct result of his engaging in protected behavior, and not much else on his part, Mendez was shot by police. Thus, if the officers win, this case would essentially punish Mendez for engaging in constitutionally permissible behavior and would let the officers off the hook for committing and unconstitutional search of Mendez’s home. The conservative justices may see this as an opportunity to stealthily strengthen the right to bear arms, and it’s very plausible that they will not throw away their shot.

V. PROXIMATE CAUSE

Lastly, the Supreme Court need not “expand” police liability to find for the plaintiffs, as it can instead view this case as one of proximate cause, as certain circuit courts have done.

It has long been held that causation is a necessary element of a constitutional claim. See Monroe v. Pape, 365 U.S. 167, 187 (1961) (Section 1983 is “read against the background of tort liability that makes a man responsible for the natural consequences of his actions.”). Some circuit courts have taken the next step of analyzing this particular factual scenario – an unreasonable search which leads to an otherwise reasonable use of force – in the framework of proximate cause. 

 In certiorari briefing before the Supreme Court, Mendez pointed to a decision by Justice Alito when he served as a Judge in the Third Circuit, Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995),  which adopted such a framework. In Bodine, a similar situation occurred where law enforcement officers conducted an unconstitutional search of a home which then led to a deadly confrontation. Justice Alito made clear that an officer’s liability for unlawful conduct is to be determined by “basic principles of tort law,” including principles of proximate cause. As a result, police 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.” The court held that if the jury were to determine “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.” The court also recognized that while the illegal entry and excessive force claims are separate, “[t]he harm proximately caused by these two torts may overlap.” However, critically, then-Judge Alito made clear that liability  would “not necessarily include all harm resulting from the otherwise reasonable use of force to carry out the detention.” (emphasis added).

 Moreover, the Tenth Circuit has previously applied a proximate cause framework in a similar case in 2016; when an officer shot a plaintiff after unlawfully entering his home, the court stated that “because a reasonable jury could determine that the unlawful entry was the proximate cause of the fatal shooting of [Plaintiff], we need not decide whether [Defendant officer] used excessive force when he confronted [Plaintiff].” Attocknie v. Smith, 798 F.3d 1252 (10th Cir. 2015), cert. denied, 136 S. Ct. 2008 (2016). The Supreme Court denied cert there, meaning that it may in fact be willing to apply the proximate cause framework in cases similar to Mendez.

For what it’s worth, the Tenth Circuit applied this framework in a more recent but much more factually-convoluted case, Pauly v. White, and the Supreme Court summarily reversed it (seemingly on other grounds) earlier this year. Notably, while the plaintiffs cited Pauly in their certiorari briefing, they omitted it in their merits brief. The effect of Pauly on the Mendez case is unclear, however, especially since the Supreme Court previously denied certiorari on the much more straight-forward Attocknie case.

Regardless, the Supreme Court can easily view this claim within the rubric of proximate cause, rather than “inventing” a new theory of liability, and thus the Ninth Circuit’s decision seems less like a rogue decision and more like a reasonable expression of existing constitutional principles.

VI. FINAL THOUGHTS

The Supreme Court could go a lot of ways with this one, from (in no order): 1) outright rejecting the provocation doctrine, 2) adopting the provocation doctrine (still within the realm of possibility depending on Justice Kennedy’s views), 3) applying a proximate cause standard and finding for the plaintiffs, 4) adopting the proximate cause framework but nonetheless finding that Mendez’s conduct was a superseding cause, 5) applying the proximate cause standard but remanding for consideration of whether Mendez’s conduct was a superseding cause, or even 6) adopting either of the above frameworks but granting the officers qualified immunity by finding  that the right at issue was not clearly established. It bears mentioning that the court has been very willing to summarily reverse in excessive force cases on qualified immunity grounds, but that it has not done so here.

Thus, while I cannot predict the outcome of this case, we must resist the urge to divide the court along ideological lines. There is simply more here than just another police shooting, and much more to the Ninth Circuit’s ruling than the “liberal overreach” of which it is often accused.