Roberts, Alito: Cops who illegally entered home without warrant, shot married couple can’t be sued . . . because the cops likely would have shot the couple anyway.
What’s happened to this country? Cops can bash in the door to your house, break windows, throw in flash-bang grenades (sometimes on top of a baby in a crib), shoot unarmed people, and the cops are never held accountable? It’s now okay to do that?
Radley Balko reports in the Washington Post:
Last week, I wrote about L.A. County v. Mendez, a case currently before the Supreme Court. In the case, the police were looking for a rogue parolee. They got a tip from an informant that the man they were looking for was seen riding a bicycle past a particular house. Based only on that, two deputies searched the house without a warrant. They then saw a small shack in the back yard. They were told that the woman who owns the house had let a down-on-their-luck couple — Angel and Jennifer Mendez — live in the shack until they were back on their feet. The two deputies then searched that residence without a warrant as well. When the deputies opened the door, Angel Mendez reached for a BB gun he kept near the bed. He later said he wasn’t even reaching for the gun to scare away the intruders, only to move it so he could get out of bed. The two deputies opened fire, striking both Angel and Jennifer. Angel Mendez was shot several times and lost part of his leg. Jennifer was shot in the back.
The lower courts determined that the officers violated the Mendezes’ Fourth Amendment rights on two occasions. First, they failed to obtain a warrant before searching the home. And second, they failed to knock and announce before entering the residence. But on the second violation, the failure to knock and announce, the lower courts determined that the officers were protected by qualified immunity. Because the Mendezes did not live on a separate property from the main house, the federal courts found that a reasonable police officer could be confused about whether he or she was required to knock and announce before entering.
At issue before the Supreme Court — or at least so we thought — is the “provocation doctrine,” a bit of case law unique to the 9th Circuit. The doctrine holds that if the police violate someone’s Fourth Amendment rights, and that violation is the proximate cause of an escalation that leads to harm caused to the plaintiffs, then the police officers are liable for that harm. In the Mendez case, the lower courts held that because the police violated the couple’s Fourth Amendment rights by not obtaining a warrant, and because that violation caused Angel Mendez to legally and reasonable reach for his gun, which caused the deputies to open fire, the deputies are liable to the injuries sustained by the Mendezes. In every other federal circuit, the deputies would not be liable, because the courts would look only at the immediate cause of the injuries — the deputies firing their guns. Because their use of force was reasonable — they were reacting to Angel Mendez reaching for what looked like a real gun — they wouldn’t be liable, even though Mendez would have been entirely justified in defending his home. Only the 9th Circuit recognizes that it was the deputies’ initial violation that escalated the situation. The attorneys for the Mendezes were asking the court to apply the provocation doctrine to the entire country. Los Angeles County was asking the court to strike down the doctrine in the only circuit where it exists.
After oral arguments last Wednesday, it seems as if there’s a good chance that the court will do neither. Of course, all the usual caveats about the perils of predicting Supreme Court cases by oral arguments apply here. But the Roberts court has a reputation for punting on cases when it can — for avoiding big issues if it can dispose of cases by looking to smaller ones. In Mendez last week, the court’s conservative justices suggested that the case may not even need to get to the provocation doctrine. Their reasons why tell us a lot about the immense protections police officers enjoy from the federal courts, even when they’ve caused serious harm.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. in particular argued that the proximate cause of the shooting wasn’t the deputies’ failure to obtain a warrant, but their failure to knock and announce before entering the Mendezes’ home. Even if the deputies had obtained a warrant, the justices argued, they’d still likely have entered without knocking or announcing. That is what caused Angel Mendez to reach for his gun, which in turn caused the officers to open fire. And because the officers were given qualified immunity for their failure to knock and announce (this wasn’t at issue for the Supreme Court), they could not be held liable for the injuries they inflicted on the Mendezes.
There are a lot of assumptions built into this line of argument, all of which tend to benefit the deputies. First, it’s just assumed that if they had applied for the warrant, they would have been granted one. Perhaps that’s true. Unfortunately, judges in general aren’t all that skeptical about search warrants, and police tend to avoid the judges who are. But it’s far from clear whether the deputies should have been given a warrant had they gone to the trouble of asking for one. The only cause they had to search either residence was a tip that an anonymous informant had spotted someone who looked like the parolee riding a bicycle in front of a particular house. That’s it. From that tip, the police entered and search not one, but two residences. If the parolee had been seen riding past several houses, would the police have been justified in searching all of those, too? That seems to be inferable from the 9th Circuit opinion:
The officers “developed a plan” in which some officers would proceed to the Hughes house, but because “the officers believed that there was a possibility that Mr. O’Dell already had left the Hughes residence,” others would proceed to a different house on the same street.
Second, several of the justices’ questions appear to just assume that . . .