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.

Hernandez v. Mesa: Come for the Mexican border shootings, stay for the drone warfare and cyber attacks.

The Supreme Court heard oral argument last week in Hernandez v. Mesa, a case about the constitutional rights of a Mexican teen, Sergio Hernandez, shot and killed by U.S. border patrol, while the officer stood in America and Hernandez stood just over the Mexican side of the border. There is no doubt that if Hernandez were American or shot on U.S. soil, then he would be afforded constitutional rights and could bring constitutional claims against the officer. But the fact that he was an alien, technically abroad, has led lower courts to find that Hernandez had no constitutional rights when shot, even if the force used was unwarranted, even though the officer stood on U.S. soil, and even though Hernandez stood just feet across the border. On the surface, this presents an interesting and important issue in and of itself. But what makes this case even more interesting are its ramifications extending well beyond just another shooting at the border. 

If the government ultimately wins this case, it will likely mean that the Supreme Court fears those ramifications more than it sympathizes with the family of the teen.

I. BACKGROUND

El Paso, Texas and Ciudad Juarez, Mexico straddle the Rio Grande river, and in areas where the river has run dry, a concrete channel, or culvert, separates the U.S. and Mexico. Through the center of the culvert runs an invisible border between the two countries. Sergio Hernandez, a 15 year old Mexican citizen, was playing in the culvert with a group of friends, taking turns touching the wall on the U.S. side and hurrying back to the Mexican side. One of the children was apprehended by a border patrol agent named Jesus Mesa. While the remaining boys fled to Mexico, Hernandez hid behind a pillar from an overpassing bridge, having physically crossed the invisible border back into Mexico. Agent Mesa then shot Sergio Hernandez in the face, killing him.  The two stood only 60 feet apart at the time. Video of the incident indicates that Hernandez does not appear to be posing any threat when shot and killed, and instead is merely peaking out from the pillar when shot.

Hernandez’s family sued the United States and Agent Mesa. After losing in the lower courts, the family petitioned for certiorari to the Supreme Court on two questions: 1) whether Hernandez’s 4th and 5th Amendment rights were violated, and 2) whether Mesa was entitled to qualified immunity, which provides liability to government officials if their conduct does not violate a “clearly established” constitutional right. In granting cert, the Supreme Court added a third question: whether Hernandez had a right to even sue in the first place, via what is called a Bivens action. Among the issues before the Supreme Court, whether the force used against Hernandez was justified is not one of them. Rather, even assuming that the shooting was unwarranted, does Hernandez have cognizable constitutional rights in the first place?

II. SKIING THE SLIPPERY SLOPE

Among the pantheon of insufferable things said daily in 1L classes across our nation, “slippery slope” ranks pretty high up there. That and “ipso facto.” But this is a quintessential case where the slippery slope (Oh god, kill me) really does lead us to bigger problems than that with which we started.

Sure, when an agent fires a weapon from inside the U.S. and shoots an alien right at the border with no justification, we see inherent injustice in denying rights or remedies to the individual. But where do we draw the line?

What about when a U.S. sniper kills a drug cartel leader (or his innocent wife) 2,000 feet away?  Or when a drone operator in New York strikes the family of an al-Qaeda leader in Yemen?  Or, even more abstractly, when a member of U.S. Cyber Command remotely accesses and searches a family computer belonging to a suspected Russia-based hacker?

All of those issues involve U.S. government officers taking action against aliens abroad from within the United States, and yet in all of these situations we understand that the Constitution does not and should not apply. Clearly, if the Court were to issue a broad holding in this case, its application could go far beyond border shootings and implicate a litany of global national security concerns.

At oral argument, many of the Justices expressed their apprehension in ruling for the Hernandez family for this exact reason. Justice Kagan began questioning by asking what Hernandez’s proposed constitutional rule was. Chief Justice Roberts explicitly raised the specter of drones in Iraq being piloted from Nevada and appeared concerned that Hernandez’s proposed rule could not be “narrowly confined.” Even Justice Breyer, often cited as the most pragmatic Justice, pointedly questioned Hernandez’s counsel about how the Court’s holding in this case would be applied to other circumstances, and also echoed Chief Justice Roberts’ concerns about this case’s application to drone strikes. Critically, Justice Kennedy appeared to be quite hesitant to extend the right to bring suit against the federal government to aliens abroad. Later, however, during questioning of counsel for Agent Mesa, the four “liberal” members of the Court appeared to be sympathetic to Hernandez’s case and willing to ultimately draw a pragmatic line between this situation and the parade of horribles listed above.

Ultimately, like with many cases, the vote will likely come down to Justice Kennedy. In two prior cases involving the rights of aliens abroad, Boumediene v. Bush, 553 U.S. 723 (2008) and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), Justice Kennedy appeared to take a practical approach to determining whether the Constitution applied. Boumediene asked whether prisoners in Guantanamo Bay could file a writ of habeas corpus to contest their indefinite detention. Justice Kennedy, writing for a 5-4 majority along with the Court’s “liberal” wing, found that practical considerations dictated that the Constitution applied, even though Guantanamo Bay technically was located in Cuba, not the United States. In Verdugo-Urquidez, a Mexican citizen facing trial in the U.S. claimed that his Fourth Amendment rights were violated when the U.S. government searched his properties located in Mexico. The Court ultimately ruled that he did not possess Fourth Amendment rights, with Justice Kennedy issuing a concurring opinion finding that it would be “impracticable and anomalous” to apply the Fourth Amendment in that situation. In both cases, Justice Kennedy endorsed practical tests to determine the constitutional rights of aliens abroad.

III. WHO WILL WIN

Who wins this case ultimately comes down to what the Justices really feel this case is about.  I see a handful of different scenarios unfolding.

a. Shutting Pandora’s Box

If the Court sees this case as opening the door to a wide range of constitutional attacks on U.S. conduct abroad, then it is very unlikely to find for Hernandez. The Supreme Court is typically loath to issue broad, sweeping opinions, for the exact reason that presents itself here. Supreme Court opinions go beyond just affirming or reversing the lower courts, and instead include a holding and a rationale which will be extensively reviewed and applied by lower courts in situations much different than the specific facts of this particular case. In the words of Justice Breyer at oral argument in this case, “[w]e write some words…. The problem is other people will read those words, and there are all kinds of things that happen…” This is the Supreme Court’s general concern in a nutshell, and it is exacerbated here. Unless a majority of the Court can forge a narrow consensus with a rule of limited applicability, then we can expect the Court to avoid finding for Hernandez. That the Court, on its own, added the question of whether Hernandez could even bring suit in the first place may signify that it wishes to give itself an “out” in order to avoid a big holding here. The Court could also simply split 4-4, in which case the government would win but the Court would not even issue an opinion; this would let the Court avoid ruling on these issues altogether.

b. Protecting Law Enforcement

Moreover, the Court could also see this as a qualified immunity case, which also would bode well for the government. This case involves qualified immunity in an excessive force setting, an area in which this Court has become increasing willing to enthusiastically expand in order to protect law enforcement officers. Qualified immunity protects government officials when their conduct did not violate a “clearly established” right. Many times in the last few years, the Court has reversed lower courts (often unanimously) when they have not sufficiently protected law enforcement officers in situations where the law was not conclusive regarding their conduct or the rights at issue. 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).  Here, while the force used by Mesa was clearly established to be excessive, the constitutional rights of Hernandez – an alien abroad – are far from established. To find for Hernandez, the Court would seemingly need to find that qualified immunity hinges on whether the conduct of the officer was clearly established to be unlawful, not whether the right of the individual was clearly established. The Court may be extremely reluctant to issue such a holding, which would likely have the effect of narrowing the doctrine of qualified immunity. 

c. Punting Like Ray Guy

Alternatively, the Court could simply punt (and yes, I Googled “best punter” to come up with this heading). The government has math on its side, which the Supreme Court can use to avoid the hardest issues for now. Because the Hernandez family lost in the lower court, it needs five votes to win. Further, there are three issues before the Court, and the Hernandez family must win each one in order to win. If the Court rejects just one of these issues (or ties on any of them), then the government wins. The Court has a ton of outs here and could simply choose to leave this issue for another day with a full complement of nine justices. There are just many ways in which the Court might opt to avoid ruling on the big issues here, especially given the likelihood of a 4-4 split with no opinion being issued.

d. Sometimes a Cigar is Just a Cigar

Or, the Court might just handle this case at face value and rule accordingly, albeit with a limited holding that takes care to avoid other implications. This is an extraordinarily sympathetic case, involving an unarmed teen being unjustifiably shot at close range just over an invisible border. Further, the Hernandez’s family has argued that ruling for the government would implement an on/off switch for constitutional rights at the border, stripping Mexican citizens or their families of any civil remedies against the U.S. or its officers, who could then shoot Mexicans with impunity. As will be explained below, if Justice Kennedy lands on a limited holding with narrow applicability, then Hernandez has a great chance of winning.

e. Donald Trump

Similarly, this case could be about reining in Donald Trump’s aggressive stance on Mexico. The Court will be reluctant to issue Donald Trump and his self-described “deportation force” a blank check to incite violent confrontations at the border. The frequency of border shootings in the past decade was raised by Hernandez’ family in their briefs and was even raised in an amicus brief filed by the Mexican government in support of Hernandez. The Court’s cognizance of the president’s agenda and the possibility for unchecked aggression may lead it to limit future executive abuses by providing rights and remedies to Mexicans at the border.

f. Implementing a Practical Approach

Finally, this case may simply be Justice Kennedy’s opportunity to further implement a practical approach to the rights of aliens abroad. Justice Kennedy is the swing vote, and he has led the charge to center the constitutional inquiry for aliens abroad on practical considerations rather than bright line rules. If Justice Kennedy can determine a limiting principle separating this case from drone strikes and the like, then he may be very willing to issue an opinion conclusively adopting a practical standard for applying the Constitution for aliens abroad. 

Such an Opinion would presumably center on the “impracticable or anomalous” language adopted by Justice Kennedy in Verdugo-Urquidez. By using the particular facts of this case – the fact that the culvert is jointly maintained by both the U.S. and Mexico; that the incident took place entirely at the border, and an invisible border at that, and; that it simply would not be impracticable to apply the Fourth and Fifth Amendments in border shootings such as this one – the Court could carefully draw the line. As the petitioner argues in his reply brief, there is simply nothing “impracticable or anomalous about ensuring that border guards, in carrying out their law-enforcement duties on U.S. soil, adhere to uniform constraints on the use of deadly force.” The Court, if it applies Justice Kennedy’s framework, could easily adopt this reasoning.

IV. CONCLUSION

I believe that the two most likely scenarios are either a 4-4 tie or a narrow win – in more ways than one – for Hernandez, but anything from 6-2 for Hernandez to 8-0 for the government seems to be within the realm of possibility. Ultimately, this case has potential as a judicial Rorschach test, with the justices each seeing the core of this case in their own way and ruling accordingly.

-Ryan