Angel Mendez; Jennifer Lynn Garcia, Plaintiffs-Appellees/ Cross-Appellants,
County of Los Angeles; Los Angeles County Sheriff's Department, Defendants, and Christopher Conley, Deputy; Jennifer Pederson, Defendants-Appellants/ Cross-Appellees.
and Submitted May 14, 2018 Seattle, Washington
Remand From The United States Supreme Court D.C. No.
Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell
Cantrall LLP, Los Angeles, California, for
Leonard J. Feldman (argued), Peterson Wampold Rosato Luna
Knopp, Seattle, Washington, for
Adrienna Wong, Staff Attorney; Peter Bibring, Director of
Police Practices; ACLU of Southern California, Los Angeles,
California, for Amicus Curiae ACLU of Southern California.
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges,
and George Caram Steeh III, [*] District Judge.
remand from the United States Supreme Court, the panel
affirmed in part and reversed in part the district
court's judgment in an action brought pursuant to 42
U.S.C. § 1983 and state law alleging that sheriff's
deputies violated plaintiffs' Fourth Amendment rights
when during their search for a parolee-at-large, the deputies
unlawfully entered plaintiffs' residence and shot them
Angel Mendez and Jennifer Lynn Garcia, were sleeping in a
small one-room shed located in the backyard of the main house
when defendants entered the shed, without a warrant or
knocking and announcing their presence. Mendez, roused from
his sleep, picked up a BB gun in order to move it off the
futon where he was sleeping, and the officers, believing they
were threatened, opened fire, severely injuring plaintiffs.
panel held, as it did in its earlier opinion Mendez v.
County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir.
2016), that the officers violated the Fourth Amendment by
entering plaintiffs' home without a warrant, consent or
exigent circumstances. The panel held that the officers'
unlawful entry, as distinct from the unlawful mode of entry,
that is, the failure to knock and announce, for which the
officers had qualified immunity, was the proximate cause of
plaintiffs' injuries. Moreover, the panel held that even
if it were to treat the failure to get a warrant rather than
the entry as the basis for the breach of duty, as the
defendants suggested, the panel would still reach the same
conclusion regarding proximate cause. The panel rejected
defendants' assertion that Mendez's action of moving
the gun so that it was pointed in their direction was a
superseding cause of plaintiffs' injuries. The panel held
that if an officer has a duty not to enter in part because he
or she might misperceive a victim's innocent acts as a
threat and respond with deadly force, then the victim's
innocent acts cannot be a superseding cause.
plaintiffs' California negligence claim, the panel held
that pursuant to the California Supreme Court's decision
in Hayes v. County of San Diego, 57 Cal.4th 622, 639
(2013), judgment should be entered in plaintiffs' favor.
The panel concluded that on remand, the judgment shall be
amended to award all damages arising from the shooting in the
plaintiffs' favor as proximately caused by the
unconstitutional entry, and proximately caused by the failure
to get a warrant. The panel directed that judgment shall also
be entered in the plaintiffs' favor on the California
negligence claim for the same damages arising out of the
remand from the United States Supreme Court we are tasked
with deciding whether the unlawful entry into a residence by
two sheriff's deputies, without a warrant, consent, or
exigent circumstances, was the proximate cause of the
subsequent shooting and injuries to the plaintiffs. We hold
that it was, permitting a federal claim under 42 U.S.C.
§ 1983. We also hold that the plaintiffs have an
independent basis for recovery under California negligence
Mendez was shot approximately ten times and suffered severe
injuries. He lost much of his leg below the knee, and he
faces substantial ongoing medical expenses. Jennifer Lynn
Garcia (now Jennifer Mendez) was shot in the upper back and
left hand. On the afternoon of the shooting, both were
sleeping in their modest home, a small one room structure on
the property of Paula Hughes. Two Los Angeles County
Sherriff's deputies, Conley and Pederson, unlawfully
entered the structure. In doing so, they roused the sleeping
Mr. Mendez. In rising from the futon on which he had slept,
Mr. Mendez picked up a BB gun that was on the futon to place
it on the floor. In the process, the gun was pointed in the
general direction of Conley and Pederson. The deputies,
believing that the BB gun threatened them, quickly opened
the shooting, deputies of the Los Angeles Sheriff's
Department were searching for a parolee-at-large, Ronnie
O'Dell. A confidential informant had seen someone
resembling O'Dell riding a bicycle in front of Paula
Hughes' home. After a briefing during which officers were
told that a couple resided in a shack behind Hughes'
home, officers were dispatched to the scene and entered
Hughes' house. Officers Conley and Pederson, who were
among the officers informed about the couple living in the
backyard of the Hughes property, were charged with searching
the area to the rear of the house. Conley and Pederson, guns
drawn and on alert because they believed O'Dell to be
armed and dangerous, approached the structure in which the
Mendezes resided. There were many apparent signs that the
structure was a residence, including: an electrical cord was
running to it; an air conditioner was installed; and some
storage lockers were nearby. Conley and Pederson nevertheless
entered the structure without announcing their presence, and
a split second later, misperceiving the threat posed by the
BB gun, shot the Mendezes, which caused their grave injuries.
Mendezes brought claims against the officers under 42 U.S.C.
§ 1983 for violations of the Fourth Amendment. They
argued that the officers unlawfully entered the shack, that
the officers' mode of entry was unreasonable because they
did not knock and announce their presence, and that the
officers used excessive force when they opened fire. The
Mendezes also brought claims for negligence under California
district court ruled in favor of the plaintiffs on all three
claims under § 1983, granting nominal damages for the
unlawful entry and failure to knock and announce, and roughly
four million dollars on the excessive force claim. In
addressing the excessive force claim, the district court
found that the officers' use of force at the time of the
shooting was reasonable, but under our circuit's former
provocation doctrine, the officers were still liable for
excessive use of force, because the unlawful entry and the
failure to knock and announce provoked the circumstances
giving rise to the subsequent shooting.
district court refused to grant recovery under California
negligence law, based on its conclusion that Conley and
Pederson acted reasonably at the moment of the shooting. The
court believed that under then-current California law, the
relevant inquiry concerned the moment of the shooting, not
the totality of the circumstances surrounding the shooting,
including pre-shooting conduct. Mendez v. County of Los
Angeles, No. CV 11-04771-MWF, 2013 U.S. Dist. LEXIS
115099, at *92-93 (C.D. Cal. Aug. 13, 2013). If one were to
consider the totality of the circumstances, the district
court determined, Conley and Pederson's conduct was
"reckless as a matter of tort law," and so
negligent. Id. at *97.
issuing its ruling, the district court was aware of a
then-pending California Supreme Court decision, Hayes v.
County of San Diego, that might bear on this analysis,
and stated that if Hayes altered the analysis, it
would alter its judgment on its own motion. Hayes
held that "tactical conduct and decisions preceding the
use of deadly force are relevant considerations under
California law in determining whether the use of deadly force
gives rise to negligence liability." Hayes v. County
of San Diego, 57 Cal.4th 622, 639 (2013). The district
court, however, declined to modify its judgment after
Hayes was decided.
officers appealed the district court's § 1983
ruling, and the Mendezes cross-appealed its California law
ruling. We affirmed in part and reversed in part. On the
unlawful entry claim, we held that the officers violated the
Fourth Amendment by entering the residence; the officers had
no warrant, lacked consent to enter, and the circumstances
did not satisfy any of several emergency or exigency
exceptions to the Fourth Amendment prohibition on
unreasonable searches and seizures. The officers could not
benefit from qualified immunity, because at the time of the
incident, case law had clearly established that the
officers' entry was unlawful. Mendez v. County of Los
Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016). We also
held that the shooting was a foreseeable consequence of the
unlawful entry, and that the district court should have
awarded full damages on the unlawful entry claim under basic
principles of proximate cause. Id. at 1195.
knock and announce claim, however, we held that though the
officers had a constitutional duty to knock and announce
before entering, this duty had not been clearly established
with regard to the specific facts of this case. As such, the
officers were entitled to qualified immunity on this claim,
and we vacated the district court's award of nominal
damages on it. Id. at 1191.
on the excessive force claim, we upheld the district
court's decision based on our circuit's prior
provocation rule. We held that the officers' unlawful
entry was reckless, at a minimum. Id. at 1194. And
under the provocation doctrine as established then in our
precedent, where an officer intentionally or recklessly
provokes a violent confrontation, and that provocation is
itself an independent Fourth Amendment violation, the officer
was then liable for a defensive use of force. Id. at
1193. We did not address the state law negligence claim.
United States Supreme Court vacated our prior decision and
remanded this case to us for further consideration.
County of Los Angeles v. Mendez, 137 S.Ct. 1539
(2017). The Court disagreed with and reversed two parts of
our ruling. First, the Court held that the Ninth
Circuit's provocation doctrine was "incompatible
with [the Court's] excessive force jurisprudence"
because it "uses another constitutional violation to
manufacture an excessive force claim where one would not
otherwise exist." Id. at 1546. However, the
Court noted that "plaintiffs can- subject to qualified
immunity-generally recover damages that are proximately
caused by any Fourth Amendment violation." Id.
at 1548. And the Court noted that the Mendezes could, in
principle, still recover for "injuries proximately
caused by the warrantless entry." Id.
at 1548 (emphasis in original). But, in assessing our
proximate cause analysis, the Court held that we did not
adequately separate ...