Angel Mendez v. County of Los Angeles

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL MENDEZ; JENNIFER LYNN Nos. 13-56686

GARCIA, 13-57072

Plaintiffs-Appellees/

Cross-Appellants, D.C. No.

2:11-cv-04771-

v. MWF-PJW

COUNTY OF LOS ANGELES; COUNTY

OF LOS ANGELES SHERIFFS OPINION

DEPARTMENT,

Defendants,

and

CHRISTOPHER CONLEY, Deputy;

JENNIFER PEDERSON,

Defendants-Appellants/

Cross-Appellees.

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted

December 8, 2015—Pasadena, California

Filed March 2, 2016

2 MENDEZ V. COUNTY OF LOS ANGELES

Before: Ronald M. Gould and Marsha S. Berzon,

Circuit Judges, and George Caram Steeh III,*

Senior District Judge.

Opinion by Judge Gould

SUMMARY**

Civil Rights

The panel (1) affirmed the district court’s bench trial

judgment finding that Los Angeles County Sheriff’s

Department deputies were not entitled to qualified immunity

for a warrantless entry and were liable for the damages

arising from the shooting that followed, (2) dismissed as

moot plaintiffs’ cross-appeal, (3) reversed the district court’s

determination that the deputies were not entitled qualified

immunity on plaintiffs’ knock-and-announce claim, and

(4) remanded for the district court to vacate the nominal

damages for that claim.

While participating in a warrantless raid of a house, the

defendant deputies entered the backyard, opened the door to

a wooden shack, and shot plaintiffs, a homeless couple who

resided in the shack.

*

The Honorable George Caram Steeh III, Senior District Judge for the

U.S. District Court for the Eastern District of Michigan, sitting by

designation.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MENDEZ V. COUNTY OF LOS ANGELES 3

The panel first held that the district court properly

determined that the deputies conducted a search within the

meaning of the Fourth Amendment under clearly established

law. The panel determined that the facts supported a finding

that the shack was in the curtilage adjacent to the home and

that it was clearly established at the time that the deputies

undertook a search by entering the rear of the house through

a gate and by further opening the door to the shack in the

curtilage behind the house. The panel agreed with the district

court that the deputies did not demonstrate specific and

articulable objective facts of an exigency that would

meaningfully differentiate this case from clearly established

law, or that would have demonstrated that the entry was a

lawful protective sweep. Because the officers violated the

Fourth Amendment by searching the shack without a warrant,

which proximately caused the plaintiffs’ injuries, the panel

held that the district court’s award of damages under the

provocation doctrine was proper.

The panel held that the deputies violated the knock-and-

announce rule, but that the law in 2010 was not clearly

established in this respect. To clearly establish the law going

forward, the panel held that officers must knock and re-

announce their presence when they know or should

reasonably know that an area within the curtilage of a home

is a separate residence from the main house. Finally, the

panel held that even though only one of the officers opened

the door to the shack, both were liable as integral participants

in the unlawful search.

4 MENDEZ V. COUNTY OF LOS ANGELES

COUNSEL

Thomas C. Hurrell, Melinda Cantrall (argued), Hurrell

Cantrall LLP, Los Angeles, California, for Defendants-

Appellants/Cross-Appellees.

David Drexler, Sherman Oaks, California, for Plaintiffs-

Appellees/Cross-Appellants.

OPINION

GOULD, Circuit Judge:

While participating in a warrantless raid of a house, Los

Angeles County Sheriff’s Department deputies Christopher

Conley and Jennifer Pederson entered the backyard, opened

the door to a wooden shack, and shot Angel and Jennifer

Mendez, a homeless couple who resided in the shack. After

a bench trial, the district court held that the deputies violated

the Fourth Amendment knock-and-announce requirement and

prohibition on warrantless searches, finding that no exigent

circumstances applied. The district court denied the deputies’

bid for qualified immunity and awarded the Mendezes

damages.

The deputies argue on appeal that the district court erred

by denying their qualified immunity defense. The Mendezes

cross-appeal the district court’s conclusion that the deputies

had probable cause to believe that a wanted parolee was

hiding in the shack when the deputies searched it. We affirm

the district court’s conclusion that the deputies were not

entitled to qualified immunity for their warrantless entry, and

we hold that the district court properly awarded damages for

MENDEZ V. COUNTY OF LOS ANGELES 5

the shooting that followed. Given this disposition, the cross-

appeal is dismissed as moot. We reverse, however, the

district court’s determination that the deputies were not

entitled qualified immunity on the knock-and-announce

claim, and we remand for the district court to vacate the

nominal damages for that claim.

I

Because this case involves the deputies’ renewed

assertion of qualified immunity after judgment, we recite the

following facts in the light most favorable to the nonmoving

parties and the factfinder’s verdict. A.D. v. Cal. Highway

Patrol, 712 F.3d 446, 452–53 (9th Cir. 2013).

In October 2010, Deputies Christopher Conley and

Jennifer Pederson were part of a team of twelve police

officers that responded to a call from a fellow officer who

believed he had spotted a wanted parolee named Ronnie

O’Dell entering a grocery store. O’Dell had been classified

as armed and dangerous by a local police team, although that

classification was “standard” for all parolees-at-large without

regard to individual circumstances. Before that day, “Conley

and Pederson did not have any information regarding Mr.

O’Dell.” Conley testified that at the time of the search he

knew nothing about O’Dell’s “criminal past” and that he

didn’t recall being given information that O’Dell was armed

and dangerous, and Pederson testified that the only

information she was given about O’Dell was that he was a

parolee-at-large.1 The officers searched the grocery store for

1

Pederson also stated, in response to a leading question, that she was

shown a “flyer of sorts” containing a picture of O’Dell and information

about O’Dell’s criminal history, but she did not testify what the flyer

6 MENDEZ V. COUNTY OF LOS ANGELES

O’Dell but did not find him. The officers then met behind the

store to debrief.

During this debriefing, another deputy, Claudia Rissling,

received a tip from a confidential informant that a man fitting

O’Dell’s description was riding a bicycle in front of a

residence owned by a woman named Paula Hughes. 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. Conley and Pederson

were “assigned to clear the rear of the Hughes property for

the officers’ safety . . . and cover the back door of the Hughes

residence for containment.” The officers were told that “a

male named Angel (Mendez) lived in the backyard of the

Hughes residence with a pregnant lady (Mrs. Mendez).”2

Pederson heard that announcement, but Conley testified that

he did not recall it.3

Conley and Pederson arrived at the Hughes residence

along with three other officers. The officers did not have a

search warrant to enter Hughes’s property. Conley and

Pederson were directed “to proceed to the back of the Hughes

residence through the south gate.” Once in the backyard, the

described.

2

Mr. Mendez was a high school friend of Hughes, and Hughes

allowed him to construct and live in a shack in her backyard. The

Mendezes had been living there for about ten months.

3

The district court found that “[e]ither he did not recall the

announcement at trial or he unreasonably failed to pay attention when the

announcement was made.”

MENDEZ V. COUNTY OF LOS ANGELES 7

deputies encountered three storage sheds and opened each of

them, finding nothing.

During this time, other officers (led by Sergeant Gregory

Minster) banged on the security screen outside Hughes’s front

door and asked Hughes to open the door. Speaking through

the door, Hughes asked the officers whether they had a

warrant, and she refused to open the door after being told they

did not. Minster then heard someone running inside the

residence, who he assumed was O’Dell. The officers

retrieved a pick and ram to bust open Hughes’s door, at which

point Hughes opened the front door. Hughes was pushed to

the ground, handcuffed, and placed in the backseat of a patrol

car. The officers did not find anyone in the house.

Pederson then met up with Minster and told him, “I’m

going [to] go ahead and clear the backyard,” and Minster

approved. Conley and Pederson then proceeded through the

backyard toward a 7' x 7' x 7' shack made of wood and

plywood. The shack was surrounded by an air conditioning

unit, electric cord, water hose, clothes locker (which may

have been open), clothes, and other belongings. The deputies

did not knock and announce their presence at the shack, and

Conley “did not feel threatened.” Approaching the shack

from the side, Conley opened the wooden door and pulled

back a blue blanket used as a curtain to insulate the shack.

The deputies then saw the silhouette of an adult male holding

what appeared to be a rifle pointed at them. Conley yelled

“Gun!” and both deputies fired fifteen shots in total. Other

nearby officers ran back toward the shots, and one officer

shot and killed a dog.

The tragedy is that in fact, Mendez was holding only a

BB gun that he kept by his bed to shoot rats that entered the

8 MENDEZ V. COUNTY OF LOS ANGELES

shack; as the door was opening, he was in the process of

moving the BB gun so he could sit up in bed. The district

court found that the BB gun was pointed at the deputies,

although the witnesses’ testimony on that point was

conflicting and the court recognized that Mendez may not

have intended the gun to point that direction while he was

getting up. Both Mendezes were injured by the shooting.

Mr. Mendez required amputation of his right leg below the

knee, and Ms. Mendez was shot in the back.

The Mendezes sued Conley and Pederson under

42 U.S.C. § 1983, alleging a violation of their Fourth

Amendment rights. After a bench trial, the district court held

that the deputies’ warrantless entry into the shack was a

Fourth Amendment search and was not justified by exigent

circumstances or another exception to the warrant

requirement. The district court also held that the deputies

violated the Fourth Amendment knock-and-announce rule.

The court concluded that given Conley’s reasonably mistaken

fear upon seeing Mendez’s BB gun, the deputies did not use

excessive force when shooting the Mendezes, see Graham v.

Connor, 490 U.S. 386 (1989), but the deputies were liable for

the shooting under our circuit’s provocation rule articulated

in Alexander v. City & County of San Francisco, 29 F.3d

1355 (9th Cir. 1994). The court also held that its conclusions

in each respect were supported by clearly established law and

that the officers were not entitled to qualified immunity. The

Mendezes were awarded roughly $4 million in damages for

the shooting, nominal damages of $1 each for the

unreasonable search and the knock-and-announce violation,

and attorneys’ fees. The deputies filed a notice of appeal, as

well as a motion to amend the judgment arguing that the

district court erred in denying qualified immunity. The

district court denied the motion, and the deputies filed a

MENDEZ V. COUNTY OF LOS ANGELES 9

second notice of appeal as to that decision. The Mendezes

filed a cross-appeal challenging aspects of the district court’s

factfinding in case we were inclined to grant qualified

immunity on the facts as found by the district court.4

II

We review de novo the district court’s post-trial denial of

qualified immunity, construing the facts in the light most

favorable to the factfinder’s verdict and the nonmoving

parties. Cal. Highway Patrol, 712 F.3d at 452–53. The

court’s factual findings are reviewed for clear error. Resilient

Floor Covering Pension Trust Fund Bd. of Trs. v. Michael’s

Floor Covering, Inc., 801 F.3d 1079, 1088 (9th Cir. 2015).

Law enforcement officers are entitled to qualified

immunity from damages unless they violate a constitutional

right that “was clearly established at the time of the alleged

misconduct.” Ford v. City of Yakima, 706 F.3d 1188, 1192

(9th Cir. 2013) (citations omitted). This inquiry “must be

undertaken in light of the specific context of the case, not as

a broad general proposition.” Saucier v. Katz, 533 U.S. 194,

201 (2001). But “officials can still be on notice that their

conduct violates established law even in novel factual

circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).

“[T]he salient question . . . is whether the state of the law” at

the time of the events (here, October 2010) gave the deputies

“fair warning” that their conduct was unconstitutional. Id. In

other words, an officer is entitled to qualified immunity

unless existing case law “squarely governs the case here.”

4

The Mendezes state that they waive their cross-appeal if we affirm the

district court’s award of monetary damages for the shooting.

10 MENDEZ V. COUNTY OF LOS ANGELES

Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)

(quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004)).

III

A

We start by analyzing the legality of the deputies’ entry

into the wooden shack. The deputies first argue that they did

not “search” the shack within the meaning of the Fourth

Amendment when Conley opened the door.

In 2010, the law was clearly established that a “search”

under the Fourth Amendment occurs when the government

invades an area in which a person has a “reasonable

expectation of privacy.” United States v. Scott, 450 F.3d 863,

867 (9th Cir. 2005) (citing Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring)). This includes the

“area immediately adjacent to a home,” known as the

“curtilage.” United States v. Struckman, 603 F.3d 731, 739

(9th Cir. 2010) (citation omitted). Four factors used to

determine whether an area lies within the curtilage are “the

proximity of the area claimed to be curtilage to the home,

whether the area is included within an enclosure surrounding

the home, the nature of the uses to which the area is put, and

the steps taken by the resident to protect the area from

observation by people passing by.” Id. (quoting United States

v. Dunn, 480 U.S. 294, 301 (1987)).

The deputies contend that not every reasonable officer

would have assumed that this “dilapidated” shack was a

dwelling. This assertion is irrelevant, as it erroneously

assumes that the Fourth Amendment applies only to

residences. See Dunn, 480 U.S. at 307–08 (“[T]he general

MENDEZ V. COUNTY OF LOS ANGELES 11

rule is that the curtilage includes all outbuildings used in

connection with a residence, such as garages, sheds, and

barns connected with and in close vicinity of the residence.”)

(citation and internal alterations omitted); United States v.

Johnson, 256 F.3d 895, 898 (9th Cir. 2001) (en banc)

(holding that a shed may be protected under the Fourth

Amendment and remanding for district court to answer the

question in first instance). In Struckman, we held that a

“backyard—a small, enclosed yard adjacent to a home in a

residential neighborhood—is unquestionably such a ‘clearly

marked’ area ‘to which the activity of home life extends.’”

603 F.3d at 739 (citation omitted).

In this case, the trial court found that the shack was thirty

feet from the house; it “was not within the fence that enclosed

the grassy backyard area” but “was located in the dirt-surface

area that was part of the rear of the Hughes property” and

could not be observed, let alone entered, “without passing

through the south gate and entering the rear of the Hughes

property.” These facts support a finding that the shack was

in the curtilage. Therefore, it was clearly established under

Struckman and Dunn that the deputies undertook a search

within the meaning of the Fourth Amendment by entering the

rear of Hughes’s property through a gate and by further

opening the door to the shack in the curtilage behind the

house. The deputies’ citations to cases involving “abandoned

property” are inapposite because even if the shack was

“dilapidated,” the officers knew that Hughes lived in the

house, and the shack was very clearly in the curtilage of the

house.

The district court correctly determined that the deputies

conducted a search within the meaning of the Fourth

Amendment under clearly established law.

12 MENDEZ V. COUNTY OF LOS ANGELES

B

The deputies next argue that they are entitled to qualified

immunity because a reasonable officer could have thought

that exigent circumstances justified the search.

A warrantless search “is reasonable only if it falls within

a specific exception to the warrant requirement.” Riley v.

California, 134 S. Ct. 2473, 2482 (2014) (citing Kentucky v.

King, 563 U.S. 452, 459–62 (2011)). The exigent

circumstances exception encompasses situations in which

police enter without a warrant “to render emergency

assistance to an injured occupant or to protect an occupant

from imminent injury,” while “in hot pursuit of a fleeing

suspect,” or “to prevent the imminent destruction of

evidence.” King, 563 U.S. at 460 (citations omitted)

(collecting cases).

The deputies primarily argue that “[a]n officer may enter

a third party’s home to effectuate an arrest warrant if he has

probable cause or a reason to believe the suspect is within,

and exigent circumstances support entry without a search

warrant.” Although the question is quite debatable, we will

assume without deciding that the officers were not “plainly

incompetent” in concluding they had probable cause to

believe that O’Dell was in the shack behind Hughes’s house.

Stanton v. Sims, 134 S. Ct. 3, 5 (2013).5 Even with probable

5

To mention just one consideration, 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 before the officers arrived. The

original group of officers recognized this, as some of them went to another

house to look for O’Dell. But we have no reason to further address the

probable cause question, as we may affirm while assuming the district

court’s probable cause predicate.

MENDEZ V. COUNTY OF LOS ANGELES 13

cause, clearly established law indicates the unlawfulness of

the deputies’ entry into the shack in this case.

As the Supreme Court held in Steagald v. United States,

451 U.S. 204 (1981), exigent circumstances to enter a home

do not exist merely because the police know the location of

a fugitive, even if they possess an arrest warrant for that

person. Id. at 211–12. In Steagald, the police received a tip

from a confidential informant regarding the location of “a

federal fugitive wanted on drug charges.” Id. at 206. The

officers executed an arrest warrant at that location two days

later, but the Court held that the search-warrantless entry

could not be justified absent exigent circumstances. Id. at

211–12. The Court rejected the view that “a search warrant

is not required in such situations if the police have an arrest

warrant and reason to believe that the person to be arrested is

within the home to be searched.” Id. at 207 n.3. Steagald

establishes that in this case, the fact that the deputies

suspected O’Dell to be in the shack was not, by itself,

sufficient to justify the warrantless search.

Although the deputies do not use the phrase “hot pursuit,”

their exigency argument seems to be premised on that

doctrine.6 The hot pursuit exception typically encompasses

situations in which police officers begin an arrest in a public

place but the suspect then escapes to a private place. United

States v. Santana, 427 U.S. 38, 42–43 (1976). In Warden v.

Hayden, 387 U.S. 294 (1967), the Supreme Court upheld a

6

Indeed, the other three possibilities listed in King—that officers

entered to render emergency assistance to an injured occupant, to protect

an occupant from imminent injury, or to prevent the imminent destruction

of evidence, King, 563 U.S. at 460—do not fit the circumstances presented

here.

14 MENDEZ V. COUNTY OF LOS ANGELES

warrantless entry into a home when “police were informed

that an armed robbery had taken place, and that the suspect

had entered [the home] less than five minutes before they

reached it.” Id. at 298. By contrast, the Court concluded in

Welsh v. Wisconsin, 466 U.S. 740 (1984), that the state’s hot

pursuit argument was “unconvincing because there was no

immediate or continuous pursuit of the petitioner from the

scene of a crime.” Id. at 753.

As a preliminary matter, a police officer spotting O’Dell,

a wanted parole-violator, outside of a grocery store does not

appear to qualify as pursuit from “the scene of a crime” as in

Warden or Welsh. But even assuming the hot pursuit doctrine

applies, Welsh explains why the deputies here are not entitled

to qualified immunity. In Welsh, a witness “observed a car

being driven erratically” and called the police, but the driver

abandoned his car and “walked away from the scene.”

466 U.S. at 742. Police arrived “[a] few minutes later” and,

after determining that the owner of the car was Welsh, the

police walked to Welsh’s residence “a short distance from the

scene.” Id. at 742–43. Without securing a warrant or

consent, the police entered and arrested Welsh. Id. at 743.

The Court held that the entry was not valid under the hot

pursuit doctrine because “there was no immediate or

continuous pursuit of the petitioner from the scene of a

crime.” Id. at 753.

Our court, sitting en banc, applied Welsh to a situation in

which police officers broke into a fenced yard in search of a

man who escaped while police were arresting him on an

outstanding warrant. Johnson, 256 F.3d at 898–900, 907–08.

We concluded that the search in that case was not

“continuous” because the officers had seen the suspect run

into the woods but lost sight of him for “over a half hour”

MENDEZ V. COUNTY OF LOS ANGELES 15

before they entered the property at issue. Id. at 907–08.

“[A]ny other outcome,” we cautioned, “renders the concept

of ‘hot pursuit’ meaningless and allows the police to conduct

warrantless searches while investigating a suspect’s

whereabouts.” Id. at 908.

Welsh and Johnson squarely govern this case and clearly

establish that the hot pursuit doctrine does not justify the

deputies’ search of the shack. Officer Zeko spotted a person

he thought was O’Dell outside the grocery store, but that was

the last time any policeman saw him before the search took

place, which the record suggests was about one hour later.

While the deputies received additional information about

O’Dell’s possible location from the confidential informant,

the location identified was outside Hughes’ home, not in the

house or the shack behind it. And the officers still did not

enter the shack until at least fifteen minutes after learning that

O’Dell was outside Hughes’ home. Moreover, the officers

were far from sure that O’Dell was still (or had ever been)

inside Hughes’s house—let alone in the shack—as evidenced

by the fact that they simultaneously searched a house down

the street. As in Welsh, “there was no immediate or

continuous pursuit of the [suspect] from the scene of a

crime.” 466 U.S. at 753. And as Johnson established, Welsh

applies when the police enter the backyard of a third-party to

look for a suspect, even when the suspect has evaded prior

attempts at arrest (as O’Dell apparently had). Johnson,

256 F.3d at 899–900, 907.

The deputies also try to justify the warrantless entry based

on a threat to the officers’ safety, urging that O’Dell had been

categorized as armed and dangerous. But Steagald and

Johnson both counsel that exigent circumstances do not exist

just because the police are dealing with a fugitive, even if he

16 MENDEZ V. COUNTY OF LOS ANGELES

is wanted on serious federal drug charges. Steagald, 451 U.S.

at 207; Johnson, 256 F.3d at 900, 908. Moreover, Conley

testified that he was not aware of O’Dell’s categorization and

did not have any information about O’Dell. Conley explained

that his gun was drawn during the search because he

“intermittently” used the light on his gun to “see what was

inside of the sheds.” A search cannot be considered

reasonable based on facts that “were unknown to the officer

at the time of the intrusion.” Moreno v. Baca, 431 F.3d 633,

639 (9th Cir. 2005). And even if we assume that Pederson

knew about the characterization, the district court found that

“the deputies lacked any credible information that the

suspect, O’Dell, was in Plaintiffs’ shack,” which explains

why Conley “did not feel threatened” before entering the

shed. The deputies correctly assert that the exigent

circumstances inquiry is objective, not subjective, see

Anderson v. Creighton, 483 U.S. 635, 641 (1987), but the

information they had at the time, as confirmed by the

conclusions they reached on the scene, is certainly pertinent.

We agree with the district court that these facts support a

conclusion based on the objective “totality of the

circumstances” that the deputies “failed to demonstrate

‘specific and articulable facts’” of an exigency.7

While the deputies’ brief urges that “judges should be

cautious about second-guessing a police officer’s assessment,

made on the scene, of the danger presented by a particular

situation,” (emphasis in brief) (quoting Ryburn v. Huff, 132

S. Ct. 987, 991–92 (2012) (per curiam)), that argument is

7

The deputies’ brief also contends that there was a possibility of

ambush arising from other debris in the yard, including parked cars, but

even if so, a threat of ambush from other structures would not justify

searching the shack.

MENDEZ V. COUNTY OF LOS ANGELES 17

inconsistent with the fact that the deputies here did not fear

imminent violence. We agree with the district court that on

this record the deputies did not demonstrate specific and

articulable objective facts of an exigency that would

meaningfully differentiate this case from clearly established

law.

C

Next, the deputies argue that they could have reasonably

assumed that Hughes had consented to a search of the shack.

The district court assumed for the sake of analysis that

Hughes had authority to consent to a search of the shack, but

it reasoned that even if Hughes had allowed the officers to

enter her home after officers brought a pick and ram from

their patrol car and set the pick against the door, any

“consent” was “coerced and consequently invalid.” The

deputies argue that because they spoke to another officer

(Sergeant Minster) in the Hughes residence before searching

the shack, “the defendants would assume the officers were

lawfully in the main residence,” and they “could reasonably

believe the sergeant obtained consent for the search” of the

shack.

We are not persuaded by this argument. Given the

deputies’ position that they lawfully entered the backyard

pursuant to an exigent circumstance, it is unclear why the

deputies would have thought that the other officers had

gained consent to search the house rather than having relied

on exigent circumstances as well. And the deputies point to

no facts in the record suggesting that they knew Hughes had

consented to a search of the shack. The district court

correctly determined that the deputies could not have

18 MENDEZ V. COUNTY OF LOS ANGELES

reasonably believed that their search of the shack was

consensual.

D

Finally, the deputies argue that their search of the shack

was a lawful protective sweep. We note that there is both a

split between the circuits and a split within our circuit as to

whether a protective sweep may be done “where officers

possess a reasonable suspicion that their safety is at risk, even

in the absence of an arrest.” United States v. Torres-Castro,

470 F.3d 992, 997 (10th Cir. 2006) (collecting cases,

including United States v. Reid, 226 F.3d 1020, 1027 (9th Cir.

2000), and United States v. Garcia, 997 F.2d 1273, 1282 (9th

Cir. 1993)). We assume without deciding that the protective

sweep doctrine could apply here. And, although the question

is subject to debate, see n.5, supra, we further assume without

deciding that the deputies’ entry into Hughes’s house was

lawful and a protective sweep could be proper if all other

requirements were met.

The district court determined that the officers did not

conduct a lawful protective sweep because, even assuming

that entry into the Hughes residence was constitutional, the

deputies’ authority to conduct a protective sweep did not

extend to the shack. The court concluded that “there is

clearly established law requiring a separate warrant for a

separate dwelling, especially when officers are aware of the

separate dwelling’s existence,” so lawful presence in the

house did not justify sweeping the shack.

We need not decide whether the district court’s qualified

immunity analysis was correct, as the deputies’ protective

sweep argument fails for another reason. To justify a

MENDEZ V. COUNTY OF LOS ANGELES 19

protective sweep, police must identify “specific and

articulable facts which, taken together with the rational

inferences from those facts, reasonably warranted the officer

in believing that the area swept harbored an individual posing

a danger to the officer or others.” Buie, 494 U.S. at 327

(internal citations, alterations, and quotation marks omitted).

The deputies are incorrect when arguing that even if “there

were no exigent circumstances to permit a search of the shed,

a reasonable officer could have believed it was proper to

search the shed as [part of a] protective sweep.” As we have

explained, “the protective sweep and exigent circumstances

inquiries are related.” United States v. Furrow, 229 F.3d 805,

811 (9th Cir. 2000), overruled in part on other grounds by

Johnson, 256 F.3d at 914. For the same reasons that exigent

circumstances did not justify entry into the shack, see section

III.B., supra, the deputies did not have the requisite suspicion

of danger to justify a protective sweep.

For the foregoing reasons, we hold that the deputies

violated clearly established Fourth Amendment law when

entering the wooden shack without a warrant.

IV

The district court also concluded that the deputies

violated clearly established law because they did not knock-

and-announce their presence at the shack before they entered

it. We hold that the deputies violated the knock-and-

announce rule, but our law in 2010 was not clearly

established in this respect. We reverse on this count and

remand for the district court to vacate the nominal damages

on this claim.

20 MENDEZ V. COUNTY OF LOS ANGELES

A

The Fourth Amendment knock-and-announce rule

requires officers to announce their presence before they enter

a home. Wilson v. Arkansas, 514 U.S. 927, 931–34 (1995).

Police may be exempt from the requirement, however, when

“circumstances present[] a threat of physical violence.”

Richards v. Wisconsin, 520 U.S. 385, 391 (1997) (quoting

Wilson, 514 U.S. at 936). The district court determined here

that because the shack was a separate residence, a fact that the

officers knew or should have known, the officers were

required to announce their presence at the shack, and that no

exception applied for the same reasons that there was no

exigency to enter for officer safety.

For the reasons stated above, the district court correctly

concluded that no exigency exception applied. See also

United States v. Granville, 222 F.3d 1214, 1219 (9th Cir.

2000) (holding that a no-knock entry was not justified

because the government did not “cite any specific facts”

suggesting that Granville posed a threat to the officers). In

Granville, we explained, “The government simply relies on

generalizations and stereotypes that apply to all drug dealers.

Our cases have made clear that generalized fears about how

drug dealers usually act or the weapons that they usually keep

is not enough to establish exigency.” Id. Here, the deputies

similarly rely on a stereotypical characterization of all

parolees-at-large as a threat without pointing to any specific

facts known about O’Dell. We conclude that the knock-and-

announce exigency exception does not apply.

The officers did, however, announce their presence at

Hughes’ front door, and we disagree with the district court

that existing case law squarely governs the question whether

MENDEZ V. COUNTY OF LOS ANGELES 21

the deputies needed to announce their presence again before

entering the shack in the curtilage. We have stated that

“officers are not required to announce at [e]very place of

entry,” United States v. Valenzuela, 596 F.2d 1361, 1365

(1979) (citation omitted) (holding that there is no requirement

to knock at a garage after properly entering home), and we

are not aware of case law clearly establishing that officers

must re-announce their presence at a shack in the curtilage,

even if it was obvious that it was being used as a residence.

Concluding otherwise, the district court relied on United

States v. Villanueva Magallon, 43 F. App’x 16 (9th Cir.

2002), which held that the knock-and-announce rule was not

violated during the search of a separate house (#784) on the

same property because “Villanueva possessed and controlled

both 792 and 784 and, in fact, 784 was not being used as a

separate residence by some third, innocent party.” Id. at

17–18. The district court reasoned that because the shack in

this case was being used as a separate residence by a third

party, a knock was required. But Villanueva Magallon also

stated that officers are not required to knock and announce “at

each additional point of entry into structures within the

curtilage.” Id. at 18. Because the shack here was in the

curtilage, Villanueva Magallon does not clearly prohibit the

deputies’ actions here.

The district court also relied on the proposition in United

States v. Cannon, 264 F.3d 875, 879 (9th Cir. 2001), that

entry into a separate dwelling (in Cannon, a rental unit in the

rear of the house) requires a separate warrant. This

proposition is at too high a level of generality to constitute

clearly established law on the question whether police are

required to separately knock and announce their presence at

a shack in the curtilage. Mullenix, 136 S. Ct. at 308 (“We

22 MENDEZ V. COUNTY OF LOS ANGELES

have repeatedly told courts . . . not to define clearly

established law at a high level of generality.” (quoting

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))).

In the absence of clearly established law that squarely

governs the situation here, qualified immunity is appropriate

on the knock-and-announce claim. Id. at 309. We reverse

and remand for the district court to vacate the award of

nominal damages on this claim.

B

To clearly establish the law going forward, see Pearson

v. Callahan, 555 U.S. 223, 236 (2009), we hold that the

deputies violated the Fourth Amendment when they failed to

knock at the shack. We do not retreat from the general

principle that “officers are not required to announce at [e]very

place of entry” within a residence. Valenzuela, 596 F.2d at

1365. But we agree with the district court that the deputies

here should have been aware that the shack in the backyard

was being used as a separate residence. The deputies were

told that a couple was living behind the house, and the shack

itself was surrounded by an air conditioning unit, electric

cord, water hose, and clothes locker. And parallel to the

district court’s reasoning that a knock should be required for

a separate residence just as a warrant is, see Cannon,

264 F.3d at 879, we hold that officers must knock and re-

announce their presence when they know or should

reasonably know that an area within the curtilage of a home

is a separate residence from the main house.

This rule is supported by the purposes of the knock-and-

announce rule, which is designed to protect our privacy and

safety within our homes. United States v. Becker, 23 F.3d

MENDEZ V. COUNTY OF LOS ANGELES 23

1537, 1540 (9th Cir. 1994). We have recognized that when

officers fail to knock and announce, they risk the “violent

confrontations that may occur if occupants of the home

mistake law enforcement for intruders.” United States v.

Combs, 394 F.3d 739, 744 (9th Cir. 2005). Indeed, here an

announcement that police were entering the shack would

almost certainly have ensured that Mendez was not holding

his BB gun when the officers opened the door. Had this

procedure been followed, the Mendezes would not have been

shot.

V

Although the district court held that the deputies’

shooting of the Mendezes was not excessive force under

Graham v. Connor, 490 U.S. 386 (1989), the district court

awarded damages under the provocation doctrine. “[W]here

an officer intentionally or recklessly provokes a violent

confrontation, if the provocation is an independent Fourth

Amendment violation, he may be held liable for his otherwise

defensive use of deadly force.” Billington v. Smith, 292 F.3d

1177, 1189 (9th Cir. 2002) (citing Alexander v. City &

County of San Francisco, 29 F.3d 1355 (9th Cir. 1994)).

Here, the district court held that because the officers violated

the Fourth Amendment by searching the shack without a

warrant, which proximately caused the plaintiffs’ injuries,

liability was proper. We agree.

The deputies argue first that the provocation doctrine is

inapplicable because they did not “provoke a violent response

by plaintiffs.” In other words, they claim that because Mr.

Mendez did not intend to threaten the officers with his gun,

he was not responding to the deputies’ actions and they did

not “provoke” him. We reject this argument. Our case law

24 MENDEZ V. COUNTY OF LOS ANGELES

does not indicate that liability may attach only if the plaintiff

acts violently; we simply require that the deputies’

unconstitutional conduct “created a situation which led to the

shooting and required the officers to use force that might have

otherwise been reasonable.” Espinosa v. City & County of

San Francisco, 598 F.3d 528, 539 (9th Cir. 2010). And the

consequences of the deputies’ position make that position

unpersuasive. On their theory, Mendez would ostensibly be

entitled to damages if after entry he had intentionally pointed

a weapon at the police while shouting “I’ll kill you,” but here

he would be out of luck because he was merely holding a BB

gun and didn’t intend to threaten the police.

Moreover, this case does not require us to extend the

provocation doctrine; we have applied provocation liability

in a similar circumstance without requiring the plaintiff to

show he acted violently. In Espinosa, we found that liability

under Alexander-Billington was possible when officers

entered an attic and shot a man because an officer “believed

that he saw something black in [the man’s] hand that looked

like a gun,” even though the suspect “had not brandished a

weapon, spoken of a weapon, or threatened to use a weapon”

and “in fact, did not have a weapon.” 598 F.3d at 533,

538–39. Espinosa thus indicates that the provocation

doctrine can apply here even though Mendez did not act

violently in response to the deputies’ entry.

The deputies also argue that they did not intentionally or

recklessly violate Mendez’s rights, a prerequisite to

provocation liability. See Billington, 292 F.3d at 1189. But

because qualified immunity “protects all but the plainly

incompetent or those who knowingly violate the law,”

Stanton, 134 S. Ct. at 5 (citation and internal quotation marks

omitted), our determination that the deputies are not entitled

MENDEZ V. COUNTY OF LOS ANGELES 25

to qualified immunity on the warrantless entry claim

necessarily indicates that they acted recklessly or

intentionally with respect to Mendez’s rights. And the record

here bears out Conley and Pederson’s recklessness—without

a reasonable belief of exigent circumstances, the deputies

entered Hughes’s property and proceeded to search a shack in

an attempt to execute an arrest warrant for a parolee that, at

most, may have been on the property, contrary to Steagald,

451 U.S. at 211–12, and Johnson, 256 F.3d at 907–08.

Indeed, the deputies appear to have been simply

“conduct[ing] warrantless searches while investigating a

suspect’s whereabouts,” id. at 908, which Johnson explicitly

forbids, id., and Welsh prohibits by implication, 466 U.S. at

753.

Finally, even without relying on our circuit’s provocation

theory, the deputies are liable for the shooting under basic

notions of proximate cause.8 The Supreme Court has

emphasized that § 1983 “should be read against the

background of tort liability that makes a man responsible for

the natural consequences of his actions.” Malley v. Briggs,

475 U.S. 335, 344 n.7 (1986) (quoting Monroe v. Pape,

365 U.S. 167, 187 (1961)). “Proximate cause is often

explicated in terms of foreseeability or the scope of the risk

created by the predicate conduct,” and the analysis is

designed to “preclude liability in situations where the causal

link between conduct and result is so attenuated that the

consequence is more aptly described as mere fortuity.”

Paroline v. United States, 134 S. Ct. 1710, 1719 (2014)

(citations omitted).

8

This conclusion follows from the Mendezes’ argument on cross-

appeal that the district court erred by not awarding “reasonably

foreseeable” damages jointly on all claims.

26 MENDEZ V. COUNTY OF LOS ANGELES

The district court here, discussing District of Columbia v.

Heller, 554 U.S. 570 (2008), recognized that when many

Americans own firearms “to protect their own homes[, a]

startling entry into a bedroom will result in tragedy.” The

court also cited Justice Jackson’s decades-old admonition in

a case involving a warrantless entry:

[T]he method of enforcing the law exemplified

by this search is one which not only violates legal

rights of defendant but is certain to involve the

police in grave troubles if continued. . . . Many

home-owners in this crime-beset city doubtless

are armed. When a woman sees a strange man, in

plain clothes, prying up her bedroom window and

climbing in, her natural impulse would be to

shoot. . . . But an officer seeing a gun being

drawn on him might shoot first.

McDonald v. United States, 335 U.S. 451, 460–61 (1948)

(Jackson, J.,concurring). Under these principles, the situation

in this case, where Mendez was holding a gun when the

officers barged into the shack unnannounced, was reasonably

foreseeable. The deputies are therefore liable for the shooting

as a foreseeable consequence of their unconstitutional entry

even though the shooting itself was not unconstitutionally

excessive force under the Fourth Amendment. See Billington,

292 F.3d at 1190 (“[I]f an officer’s provocative actions are

objectively unreasonable under the Fourth Amendment, as in

Alexander, liability is established, and the question becomes

the scope of liability, or what harms the constitutional

violation proximately caused.”).

MENDEZ V. COUNTY OF LOS ANGELES 27

VI

Lastly, Pederson argues that she cannot be held liable

because she did not search the shack. Pederson testified,

however, that after clearing the sheds on the south side of the

property, she told Sergeant Minster that she was “going to

check the rest of the yard,” including the shack. Minster

testified similarly. Pederson also approached the shack with

her weapon drawn alongside Conley. It is inconsequential

that only Conley opened the door and pulled the blanket back

from the doorframe while Pederson stood by—under our case

law, Pederson was an “integral participant” in the unlawful

search because she was “aware of the decision” to search the

shack, she “did not object to it,” and she “stood armed behind

[Conley] while he” opened the shack door. Boyd v. Benton

County, 374 F.3d 773, 780 (9th Cir. 2004).

VII

Because we affirm the district court’s conclusion that the

deputies are liable for the shooting following their

unconstitutional entry, the Mendezes’ cross-appeal is waived,

and we do not reach the issues therein. The district court

judgment is AFFIRMED insofar as it awards damages for the

shooting and for the unconstitutional entry. The award of $1

nominal damages for the knock-and-announce violation is

REVERSED, and we remand for that nominal damages award

to be vacated.

13-56686 is AFFIRMED IN PART and REVERSED

IN PART; and 13-57072 is DISMISSED AS MOOT.