Mendez v. County of Los Angeles

          Argued and Submitted May 14, 2018 Seattle, Washington

          On Remand From The United States Supreme Court D.C. No. 2:11-cv-04771-MWF-PJW

          Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell Cantrall LLP, Los Angeles, California, for Defendants-Appellants/Cross-Appellees.

          Leonard J. Feldman (argued), Peterson Wampold Rosato Luna Knopp, Seattle, Washington, for Plaintiff-Appellees/Cross-Appellants.

          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.

         SUMMARY ^[**]

         Civil Rights

         On 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 multiple times.

         Plaintiffs, 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.

         The 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.

         Addressing 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 shooting.

          OPINION

          GOULD, CIRCUIT JUDGE:

         On 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 law.

         Angel 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 fire.

         Before 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.

         The 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 law.

         The 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.

         The 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.

         In 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.

         The 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.^[1] Id. at 1195.

         On the 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.

         Finally, 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.

         The 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 ...