9th Circuit Denies Cops Who Shot Innocent People 15 Times Qualified Immunity For The Second Time

from the quit-while-you're-behind dept

Fri, Aug 10th 2018 2:38pm — Tim Cushing

Two Los Angeles Sheriff's Department deputies are hearing -- for the fourth time -- they'll be personally responsible for a string of Constitutional violations resulting in them filling two innocent people with bullets. At this point, the officers have lost at the district level, the Appeals Court, got a partial remand (but no grant of immunity) from the Supreme Court, and are back in front of the Ninth Circuit Court of Appeals losing again.

Deputies Christopher Conley and Jennifer Pederson were searching for a parolee named Ronnie O'Dell. A department briefing claimed O'Dell lived in a one-room shack behind a home owned by Paula Hughes. O'Dell did not live there. Instead, the deputies found -- after entering the shack without announcing their presence or obtaining a warrant -- Angel Mendez and Jennifer Garcia. Mendez, who had been sleeping on a futon, started to move a BB gun off the bed (the BB gun was used to shoot pests) and set it on the floor so he could stand up. Deputy Conley shouted "Gun!" and the rest -- all fifteen bullets of it -- is tragic history.

From the Ninth Circuit Appeals Court's second pass [PDF] at this case:

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.

The district court found the deputies had violated clearly established rights -- both with the warrantless entry and the use of force. The appeals court upheld this ruling, siding with the lower court's interpretation of "provocation:" the legal theory that the deputies' failure to "knock and announce" directly created the "dangerous" situation (Mendez awakening and trying to move his gun) that resulted in officers shooting Mendez and Garcia.

This was appealed and the Supreme Court trimmed back a bit of the Ninth Circuit's Fourth Amendment jurisprudence. It ruled against the "provocation rule" instituted in the Ninth Circuit, finding no Constitutional precedent for this theory.

The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham.

In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation.

This doesn't create more protections for officers. All it does is constrain the Ninth Circuit to existing QI precedent. The court can no longer rule the shooting was excessive because officers created the situation that resulted in shooting. But that's not the same as saying the force was justified either. There's more to this, and that's in the Ninth Circuit's second opinion.

On remand, the Ninth Circuit court reconsiders its take on the excessive force claim. Unfortunately for the deputies, this doesn't mean they'll escape liability. If anything, the direction from SCOTUS pushed the appeals court to add state law violations to the mix. The opinion is still as acidic the second time around.

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.

As is pointed out later in the opinion, there's a goddamn good reason the Fourth Amendment should be respected by law enforcement officers. Refusing to do so makes things more dangerous for everyone -- officers and citizens -- even though it's citizens paying with their health and lives for these violations far more frequently.

Important social interests are served by minimizing interactions between armed police officers on high alert and innocent persons in their homes, precisely because such interactions can foreseeably lead to tragic incidents where innocent people are injured or killed due to a split-second misunderstanding. One way the Constitution serves these interests is by adopting a rule that restricts officer entry into a residence except in certain limited circumstances. And it is obviously foreseeable that fewer tragic incidents like this one would occur under an enforced regime where officers will not enter homes without sufficient justification, as compared to one where officers enter without adequate justification. Especially where officers are armed and on alert, violent confrontations are foreseeable consequences of unlawful entries.

The other safety barrier between innocent people being gunned down by officers on high alert is the warrant requirement. These deputies didn't get a warrant. Nor was it even possible for them to obtain one, unless they did so fraudulently. The court lays down some nasty verbal licks describing the lack of mere suspicion, much less probable cause, surrounding this unlawful search and deployment of force.

Here, the officers most likely lacked probable cause to believe that O’Dell was in a shed that was known, or reasonably should have been known, to belong to the Mendezes. As we noted in our prior decision in this case, “O’Dell was supposedly spotted riding a bicycle in front of Hughes’ house. Unless he was riding in circles, he would have passed the house long before the officers arrived. The original group of officers recognized this, as some of them went to another house to look for O’Dell.” Mendez, 815 F.3d at 1188 n.5. Under the circumstances the officers had no more reason to believe that O’Dell was on Hughes’ property than that he was on any other property reachable by bike within the time between the informant’s report and the arrival of the police. And although the officers came across a bike parked in front Hughes’ home, there was nothing to suggest that the bike was or resembled the bike O’Dell was riding. Seeing a bike after a suspect was seen riding a bike provides no more probable cause than seeing a car after a suspect was seen driving a car.

There's nothing better waiting for the deputies' "but he had a gun" argument:

[A]mong the reasons why the Fourth Amendment erects a barrier to entry is that an officer might, due to a mistaken assessment of a threat, harm a person inside the residence. Persons residing in a home may innocently hold kitchen knives, cell phones, toy guns, or even real ones that could be mistakenly believed by police to pose a threat. The possibility of misperceiving a threat is among the reasons why entry into a home by armed police officers with weapons drawn is dangerous. In such cases, the innocent acts of a homeowner in moving an ordinary item in an ordinary way cannot properly be viewed as a superseding cause.

A California Supreme Court decision paves the way for another chance to hold these deputies' responsible for their irresponsible actions. The one issue the Ninth Circuit found in favor of the officers -- the "knock and announce" violation -- is now removed, thanks to this local ruling.

Under California law, unlike under 42 U.S.C. § 1983, the failure to knock and announce can be a basis of liability. The officers knew or should have known about the Mendezes’ presence. Yet they decided to proceed without taking even simple and available precautions, including announcing their presence, which could have protected the Mendezes from the severe harm that befell them.

The deputies are now on the hook for even more damages, something they could have avoided by not appealing the district court ruling. But QI cases tend to resolve in favor of law enforcement, so why not roll these dice? But you'd think it would all be pretty clear where this was going after the Ninth Circuit's first pass at the case. What little the officers thought they'd gained from the Supreme Court's reversal on a single claim has now turned into additional damages for state law violations.

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Filed Under: 9th circuit, angel mendez, christopher conley, jennifer garcia, jennifer pederson, lasd, los angeles, los angeles sheriff's department, qualified immunity

39 Comments

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Anonymous Anonymous Coward (profile), 10 Aug 2018 @ 3:30pm

Is it, or isn't it? Only your Supreme Court knows...
though everyone else cares. (for you younger folks, this is a reference to a hair coloring commercial from...well possibly before you were born where only your hairdresser was supposed to know)

"In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure. There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation."

That's from the Supreme Court. It covers all jurisdictions. Why do we still have problems with police not being held accountable for their 4th Amendment violations?

Ah. There is that qualified immunity exception mentioned. Something that is not found in any Legislative made law, but in an 'out of whole cloth made up by the Supreme Court exception', that seems to clearly violate the constitution (possibly several articles, though I leave that to the constitutional lawyers here). Except that since the Supreme Court made it up, they aren't (at least any time soon) going to reverse that position.
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Agammamon, 10 Aug 2018 @ 4:41pm

[A]mong the reasons why the Fourth Amendment erects a barrier to entry is that an officer might, due to a mistaken assessment of a threat, harm a person inside the residence. Persons residing in a home may innocently hold kitchen knives, cell phones, toy guns, or even real ones that could be mistakenly believed by police to pose a threat.

That's why we need the yellow circles.

https://youtu.be/aZFH4wCLVXY?t=33
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Anonymous Coward, 10 Aug 2018 @ 4:43pm

Wait this is FU CALI to the 2nd amendment country
So anyone who has any type of weapon in the Mans eye
is an illegal one .
So why is anyone up in arms that someone innocent was shot ?
I mean hey it's almost like Chicago , 70 plus people shot with numerous killed in the most gun restrictive city in America and no one bats an eye .
Don't worry ,the police , they are there to kill you as much as protect you .
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Sayonara Felicia-San (profile), 10 Aug 2018 @ 4:58pm

How does the epicenter of liberal progressivism...
...have the countries most regressive, mentally deranged, racist, incompetent, and corrupt police forces in the entire nation?
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Sayonara Felicia-San (profile), 10 Aug 2018 @ 5:08pm

Re: Is it, or isn't it? Only your Supreme Court knows...
> "though I leave that to the constitutional lawyers"

No Dude! That's the whole problem. Just because someone is a constitutional lawyer or scholar, does not automagically empower them to interpret the constitution.

That kind of deference to pseudo-expertise, is exactly why we have such a fucked in the head legal system!

Anyone with even a moderate level of intelligence can interpret what the Constitution means.

I mean for fracks sake, Clarence Thomas is a Supreme Court Justice!
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Anonymous Coward, 10 Aug 2018 @ 5:14pm

Re: How does the epicenter of liberal progressivism...
Because the police enjoy the highest amount of rights of anyone in the US who isn't a billionaire. Power corrupts.
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Anonymous Anonymous Coward (profile), 10 Aug 2018 @ 5:31pm

Re: Re: Is it, or isn't it? Only your Supreme Court knows...

No Dude! That's the whole problem. Just because someone is a constitutional lawyer or scholar, does not automagically empower them to interpret the constitution.

There are people, and some of them here, who know more about what subject violates which amendment better than I do. I want to hear from them, rather than bloviating about which amendment(s) are violated by some complex concept, and be wrong or leave something out. There is potential for more than one here. I am not expert enough to capture all the possibilities. Hence a request for some expertise.

That kind of deference to pseudo-expertise, is exactly why we have such a fucked in the head legal system!

Law is complex. Lawyers made it so. Some argue that they did so for job protection. Maybe that is so. But until we change it, it is what we have. We can argue within that system for simpler laws, but for now, we need to ague within that system.

Anyone with even a moderate level of intelligence can interpret what the Constitution means.

I do all the time, and yet courts seem to disagree with me. The 4th Amendment seems pretty clear to me, yet we have all sorts of exceptions and clarifications and and purely disingenuous interpretations from courts all the time.

Legislatures have some tendency to try to control speech in different ways, yet the pure reading of the 1st Amendment states "Congress shall make no law..." yet state legislatures are not Congress and keep on trying. Right or wrong, they try.
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Sayonara Felicia-San (profile), 10 Aug 2018 @ 5:53pm

Re: Re: How does the epicenter of liberal progressivism...
I'm talking specifically about the LAPD. Personal experience is that these folks are the dirtiest cops anywhere.

I remember when they were looking for Christopher Dorner and they ended up randomly shooting this poor Mexican couple delivering newspapers.

LAPD loves issuing press releases about how they are 'investigating' someone, which is code for "we ain't doing shit, because this person is rich"

Case and point, Weinstein was actually charged in NY, while the LAPD is still "investigating"
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Thad (profile), 10 Aug 2018 @ 5:57pm

Re: tl;dr
That and "no law" always came with implied caveats. The framers certainly didn't intend the First Amendment to mean that Congress couldn't outlaw defamation, fraud, or perjury.
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Anonymous Anonymous Coward (profile), 10 Aug 2018 @ 6:09pm

Re: Re: Re: How does the epicenter of liberal progressivism...
OK, we get you have some personal axes to grind, but this story is about two Deputies. Deputies, by definition, are not members of the LAPD. They work for Los Angeles County, which I assume means the Sheriffs Department, which is related to, but still not LAPD. That, doesn't mean they are not dirty, but it does mean that your assertions have nothing to do with the article being discussed.

Also, anecdotal stories are not actually evidence. Especially when the stories are about incidents that are not germane to the current discussion.
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Christenson, 10 Aug 2018 @ 6:20pm

Re: How does the epicenter of liberal progressivism...
Simple enough:
San Francisco is the epicenter.
LA has Hollywood and all the rich movie stars that pay for the cops to protect against everyone else. That’s a huge conservative streak; no gay county duped or city council members there!
Not that there aren’t a bunch of leftist workers in the industry.
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Anonymous Anonymous Coward (profile), 10 Aug 2018 @ 6:39pm

Re: Re: tl;dr
And there we go. Someone with a different, and possibly better perspective of some Constitutional issues, with some information I did not bring to bear.

Courts are always musing about the Framers intents. We only have some idea what the intent of the Framers were from their writings. While I agree with Thad (there are legitimate exceptions to the plain language), for me, the plain language is more important than perceived intent. If the Framers meant something else, they should have written something else. At least for my perspective.
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Anonymous Coward, 10 Aug 2018 @ 6:42pm

Being a cop seems to be the only profession where you can completely fuck up, and then use the excuse that you were scared and your job is really hard and have it actually work.
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Sayonara Felicia-San (profile), 10 Aug 2018 @ 7:13pm

Re: Re: Re: Re: How does the epicenter of liberal progressivism...
What are you talking about? I did not share any anecdotal stories? I only shared verifiable national news stories.

And no, Los Angeles County IS Los Angeles the city. It is a ridiculously large county. This is part of the reason for it being ungovernable and it's police force's lack of accountability.

There are some incorporated cities within Los Angeles county, such as Beverly Hills and West Hollywood, and they have a mix of their own services and some shared services, but these are the exceptions, not the rule.
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Anonymous Anonymous Coward (profile), 10 Aug 2018 @ 7:34pm

Re: Re: Re: Re: Re: How does the epicenter of liberal progressivism...
What does any of that have to do with the article at the head of this page?
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Sayonara Felicia-San (profile), 10 Aug 2018 @ 8:10pm

Re: Re: Re: Re: Re: Re: How does the epicenter of liberal progressivism...
What the hell? Are you deranged? You're point was rendered moot, so you move on to the next one? Please try to keep up.

The LAPD is a chronically corrupt police department. They didn't give a shit because the unfortunate dupe they shot was poor.

The LAPD continues selectively enforcing the laws for the rich entitled sociopaths who live there. They have been doing this FOR DECADES without punishment, and 1 judge is not going to change squat.
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Nemo, 10 Aug 2018 @ 9:00pm

Re: Re: Re: Re: Re: Re: Re: How does the epicenter of liberal progressivism...
ACC's point wasn't rendered moot, instead you demonstrated that you don't understand what "anecdotal" means, since you claimed that your anecdotes weren't anecdotal, but "verified national news stories".

Once you asserted that your anecdotes weren't anecdotes, where else could ACC go in the conversation - concede your ignorance as fact, and try to debate you on your terms?

Yeah, no. They bailed because you were a time-waster, or something like that. Try learning what anecdotal information actually /is/. It will allow you to raise the level of your discussion - but only if you avoid what you are currently doing.

At least, I hope. What I expect is for you to get angry, defend your position, and refuse to accept that you might be (actually are) wrong.

So, you have a choice now, go learn what 'anecdotal' actually means, and stop misusing it, or get pissed and rant about how even though you are wrong, you are actually right.

Up to you, I don't care.
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Anonymous Coward, 11 Aug 2018 @ 12:10am

Re: Re: Re: Re: Re: Re: Re: How does the epicenter of liberal progressivism...
Run away like you do.
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TimeCop, 11 Aug 2018 @ 5:53am

A case for time travel...
Someone needs to build a time machine for incidents like this.

Jump back, swap the places between the criminal-cops and the victims just as the bullets are fired.

Then the problem solves itself.

This would be fun for tasing incidents as well, making sure the taser darts impact with the criminal-cops' genitalia.

Just don't go back in time to kill hitler, or you end up making more work for the International Association of Time Travelers.

Please read up on the member forums before attempting your first travel.

https://www.tor.com/2011/08/31/wikihistory/
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Sayonara Felicia-San (profile), 11 Aug 2018 @ 7:05am

Re: Re: Re: Re: Re: Re: Re: Re: How does the epicenter of liberal progressivism...
It was. The implication was that I was sharing PERSONAL anecdotes.

The poster got OWNED and then just went to a totally different topic.

Sorry, but you can't just "oh but what about..." your way through every discussion.

Go read a book. Elements of Argument is good, there might be even better books on logic and logical reasoning.
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Anonymous Anonymous Coward (profile), 11 Aug 2018 @ 7:17am

Re: Re: Re: Re: Re: Re: Re: Re: Re: How does the epicenter of liberal progressivism...
OK, it's time to consult the Master List of Logical Fallacies for the likely cause(s) of this ranter's behavior.

I think the assertion of 'master' might be a bit of a stretch, but it is fairly comprehensive.
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Anonymous Coward, 11 Aug 2018 @ 7:41am

Re:
There may be a few more on that list .. how about politicians?
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Anonymous Coward, 11 Aug 2018 @ 7:05pm

Confused by the headline. Did they shoot innocent people 15 times or shoot 15 people who were innocent?
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That One Guy (profile), 11 Aug 2018 @ 8:13pm

Re:
The former, two people in this case, though I can understand why you might have thought it was the latter.
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Anonymous Coward, 12 Aug 2018 @ 4:26am

So these 2 people were sleeping in a shack, cops bust down the door, see a gun and start firing?

This is the real problem, the cops are told to shoot first and ask questions later.

Wouldn't have been better for everyone if the cops retreated to a safe area and asked them to come out with hands up? In a case like this, isn't retreat the safest option for both the victims and the police.

The police are supposed to serve and protect. If that means only that they serve and protect themselves, we don't need them.
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Anonymous Coward, 12 Aug 2018 @ 1:47pm

Re: Thanks
Spam like this is why we need to remove the useless "URL" field from comments.
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Anonymous Coward, 12 Aug 2018 @ 1:50pm

"Angel Mendez was shot approximately ten times and suffered severe injuries."

Whoa!!!

He was shot ten times... in one sitting... and lived?! Is that a new record?

He should have the bullets moulded into false teeth, and become a real-life Bullet Tooth Tony.
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christenson, 12 Aug 2018 @ 3:47pm

Re: Thanks
Looks like some kind of security test...remember the vulnerabilities in some browsers to obscure unicode characters?
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Bruce C., 12 Aug 2018 @ 10:02pm

I have high hopes for this...
Apart from loss of QI, the circuit defines this harm as a "foreseeable consequence" of warrantless/unannounced searches. This stands squarely on the "secure in their persons" clause in the 4th amdendment. If the same is applied to the other elements (houses, papers, personal effects), maybe we can make a dent in the "good faith" exception/rule for suppression of illegally obtained evidence.
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Anonymous Coward, 13 Aug 2018 @ 12:44pm

Whats the difference between a soldier shooting an innocent civilian in another country vs a police officer shooting someone in this country?
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dandontala
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Parolee Odell, 20 Jul 2020 @ 10:24am

Re:
Not anonymous coward. Falsely accused and defamation of character just to name a few. Have questions? Wanna know the truth? Maybe write a book? Make a movie? Its bigger than you know. You guys dont even know the half of it. This is the allowed version. So much more to tell.
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