Martin A. Schwartz
Martin A. Schwartz (NYLJ/Rick Kopstein)

Physical entry into the home is the chief evil the Fourth Amendment was designed to prevent. Absent consent or exigent circumstances, the police need a warrant to enter a person’s home. But what if the police intentionally make an unconstitutional entry into a home and, once inside, reasonably fearing they are in imminent danger of serious physical harm, employ deadly force? Under the circumstances the use of force was reasonable, but it may not have been necessary if the police had not conducted the unconstitutional entry. The Ninth Circuit had formulated the “provocation doctrine” for this type of situation. Under this doctrine the officer could be held liable for injuries from the use of force which was otherwise reasonable, but which was a foreseeable consequence of his intentional or reckless unconstitutional search.

In County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), the U.S. Supreme Court, in a unanimous decision written by Justice Samuel A. Alito Jr., recently overturned the provocation doctrine on the ground that it was inconsistent with the court’s Fourth Amendment excessive force jurisprudence. The court held that whether officers who conduct an unconstitutional search are liable for injuries from their subsequent use of force depends upon the application of traditional proximate cause principles. As we will see, applying proximate causation in these circumstances is easier said than done.


Deputy sheriffs in California were searching for a parolee-at-large named Ronnie O’Dell, who was considered armed and dangerous. They learned from a confidential informant that O’Dell was seen at a home owned by Paula Hughes, and that Angel Mendez and his wife lived in a shack in the backyard of her home. After failing to find O’Dell in Hughes’s home, the officers, without a warrant and without knocking and announcing their presence, entered the Mendez shack. Angel Mendez was holding a BB gun closely resembling a small caliber rifle, which he kept for use on rats and other pests. When the officers entered the shack, the BB gun was pointed “somewhat” at Deputy Sheriff Conley. “Deputy Conley yelled ‘Gun!’ and the deputies immediately opened fire, discharging a total of 15 rounds. Mendez and [his wife] ‘were shot multiple times and suffered severe injuries,’ and Mendez’s right leg was later amputated below the knee.” 137 S. Ct. at 1545 (citation omitted). O’Dell was not in the shack or anywhere on the Hughes property.

The Mendezes’ §1983 complaint asserted three Fourth Amendment claims: (1) warrantless entry into their home, (2) failing to knock and announce, and (3) use of excessive force. After a bench trial, the district court found that the warrantless entry and failure to knock and announce violated the Fourth Amendment, but awarded the plaintiffs only nominal damages for these violations. The court found the deputies’ use of force reasonable but held for the plaintiffs under the circuit court provocation doctrine, because their shooting of the plaintiffs resulted from their intentional Fourth Amendment violations, namely, the warrantless entry and failing to knock and announce. The district court awarded plaintiffs approximately $4 million damages on their excessive force claim.

On the deputies’ appeal, the Ninth Circuit held that: (1) qualified immunity protected the deputies from liability on the knock and announce claim, (2) qualified immunity did not protect the deputies from liability on the warrantless entry claim because their warrantless entry violated clearly established Fourth Amendment law, and (3) the deputies were liable for the injuries from firing at the plaintiffs under either the provocation doctrine or, alternatively, under a traditional proximate cause analysis. The circuit court found it reasonably foreseeable that officers who make a warrantless unannounced entry into a home would be met with an armed homeowner.

Issues Presented

The factual scenario in County of Los Angeles v. Mendez raised at least three significant issues:

(1) Is the Ninth Circuit provocation rule consistent with the Supreme Court’s Fourth Amendment excessive force jurisprudence under Graham v. Connor, 490 U.S. 386 (1989) and its progeny? Short answer, NO!

(2) In determining whether an officer’s use of force was reasonable, may a court consider the officer’s actions leading up to the use of force? Short answer, NOT DECIDED!

(3) May a §1983 plaintiff recover damages for injuries from an officer’s reasonable use of force following an unconstitutional entry into the home under traditional application of proximate cause principles? Short answer, MAYBE!

We will tackle these issues seriatim.

Fourth Amendment Violated?

Issue One: In determining whether an officer’s use of force violated the Fourth Amendment, Graham v. Connor requires a determination of whether, under the “totality of the circumstances” facing the officer, the use of force was objectively reasonable. In other words, was this the type of force a reasonable officer on the scene could have employed. If it was, the use of force did not violate the Fourth Amendment. Under Graham, the officer’s subjective intent is wholly irrelevant in evaluating the reasonableness of the officer’s use of force.

The Supreme Court in Mendez ruled that the objective reasonableness framework fleshed out by Graham and its progeny “sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment.” 137 S. Ct. at 1546. Therefore, a court may not

look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force. [The provocation rule] mistakenly conflates distinct Fourth Amendment claims. [T]he objective reasonableness analysis must be conducted separately for each seizure that is alleged to be unconstitutional. An excessive force claim is a claim that a law enforcement officer carried out an unreasonable seizure through a use of force that was not justified under the relevant circumstances. It is not a claim that an officer used reasonable force after committing a distinct Fourth Amendment violation such as an unreasonable entry. [¶] By [improperly] conflating excessive force claims with other Fourth Amendment claims, the provocation rule permits excessive force claims that cannot succeed on their own.

Id. at 1547.

The provocation rule was also ill advised because it included “a vague causal standard,” failed to incorporate the traditional proximate cause standard (of which we will have more to say later), and improperly allowed for consideration of an officer’s subjective intent.

The Supreme Court in Mendez effectively instructed the lower courts to refrain from doctoring the Graham Fourth Amendment excessive force framework. Mendez also serves as a reminder that encounters between a law enforcement officer and private citizen frequently involve multiple distinct Fourth Amendment searches and seizures, and that the constitutionality of each must be analyzed separately, that is, as a separate Fourth Amendment event. For example, a police officer may make a traffic stop, search the vehicle, arrest the driver, and use force in making the arrest and bringing the arrestee into custody. Although arising out of the same general incident, the stop, search, arrest, and use of force each requires a separate Fourth Amendment analysis.

Officer’s Actions Considered?

Issue Two: The Mendez fact pattern raises the issue whether the “totality of the circumstances” considered in determining the reasonableness of a law enforcement officer’s use of force should be limited to the circumstances immediately preceding the officer’s use of force, or should more broadly encompass the officer’s actions leading up to it. Unfortunately, the Supreme Court in Mendez refused to address that issue because it had not granted certiorari on it and the court below did not address it.

This is an exceedingly important issue, and it has provoked a variety of views in the circuit courts. At one extreme, some circuits “freeze the time frame” and consider only the officer’s actions immediately preceding the use of force. Under this view, the officer’s conduct leading up to her use of force is irrelevant. The Second Circuit is in this camp, holding that an officer’s actions leading up to her use of force is “not relevant and admissible.” Salim v. Proulx, 93 F.3d 86, 92 (2d Cir. 1996). At the other extreme, the Third Circuit holds that evaluating the reasonableness of an officer’s use of force should not automatically exclude “all context and causes prior to the moment” force was used because “[h]ow is the reasonableness of a bullet striking someone to be assessed if not by examining the preceding events?” Abraham v. Raso, 183 F.3d 279, 291 (3d Cir. 1999). In the author’s view, the Third Circuit’s flexible approach is far preferable to the Second Circuit’s rigid position, which deprives the fact finder of the ability to understand the context in which the officer’s use of force arose. It is hornbook evidence law that a trial judge has considerable discretion to allow “background” evidence to be introduced to place a controversy in context so that the jury will have a real life understanding of it. Of course, the right to introduce evidence of “background” and “context” is not unlimited; it is subject to the district court’s discretionary authority under Fed. R. Evid. 403 to weigh the probative value of proffered evidence against its potential for unfair prejudice or danger of misleading and confusing the jury.

Damages Recoverable?

Issue Three: In its seminal decision in Monroe v. Pape, 365 U.S. 167, 187 (1961), the court said that §1983 should be “read against the background of tort liability that makes a [person] responsible for the natural consequences of his [or her] actions.” Since the decision in Monroe, common law proximate cause principles have continuously played a powerful role on the issue of §1983 liability and compensatory damages. As with common law tort claims, proximate cause can give rise to sticky issues of duty, foreseeability,and intervening cause. The court in Mendez said that under traditional proximate cause principles, the fact that the officers’ use of deadly force was reasonable does “not [necessarily] foreclose recovery for injuries proximately caused by the warrantless entry.” Mendez, 137 S. Ct. at 1548. While the Court of Appeals relied upon proximate cause as an alternative ground to the provocation doctrine, the U.S. Supreme Court found that the circuit court’s proximate cause analysis was tainted by several errors. For starters, the circuit court improperly focused on the foreseeability of risks associated with the officers’ failure to knock and announce, even though it held the officers protected by qualified immunity on the knock and announce claim. Then, too, the circuit court failed to “identify the foreseeable risks associated with the relevant constitutional violation (the warrantless entry); nor did it explain how, on these facts, [plaintiffs'] injuries were proximately caused by the warrantless entry.” Id. The Supreme Court therefore vacated the circuit court’s decision and asked the court on remand to “revisit the question whether proximate cause permits [plaintiffs] to recover damages for their shooting based on the deputies’ failure to secure a warrant at the outset.” Id. (citation omitted). In other words, the issue is whether there is a sufficiently direct connection between the warrantless entry and the injuries from the use of force.

The court cited specific portions of the briefs for the parties and the United States as amicus curiae (in support of defendants) as a “useful starting point” for resolving the causation issue. In their main and reply briefs, the defendants argued that (1) the warrant requirement was designed to prevent arbitrary governmental invasions of individual privacy interests, not to prevent physical injuries; and (2) Angel Mendez’s threatening the officers by pointing his BB gun at them was a non-foreseeable superseding cause that broke the chain of causation between the warrantless entry and the injuries from the use of force. (For a recent example of the application of causation principles in a deadly force case, see Johnson v. City of Philadelphia, 837 F.3d 343 (3d Cir. 2016)). Defendants argued that even if the deputies had a search warrant “in their pocket,” they still would have shot the plaintiffs after the BB gun was pointed at one of the officers. The plaintiffs, however, countered that Angel Mendez’s conduct was not a superseding cause because it is foreseeable that a law enforcement officer’s warrantless entry into a private citizen’s home without the consent of the homeowner is likely to lead to a violent confrontation.

Proximate cause is normally a factual issue for a properly instructed jury. Given that there were reasonable causation arguments on both sides in Mendez, it would not be surprising if this issue, like so many difficult issues, winds up in the lap of the finder of fact.