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; LOS

ANGELES COUNTY SHERIFF'S OPINION

DEPARTMENT,

Defendants,

and

CHRISTOPHER CONLEY, Deputy;

JENNIFER PEDERSON,

Defendants-Appellants/

Cross-Appellees.

2 MENDEZ V. CONLEY

On Remand From The United States Supreme Court

Argued and Submitted May 14, 2018

Seattle, Washington

Filed July 27, 2018

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

Judges, and George Caram Steeh III, * District Judge.

Opinion by Judge Gould

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

*

The Honorable George Caram Steeh III, United States District

Judge 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. CONLEY 3

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

4 MENDEZ V. CONLEY

be entered in the plaintiffs’ favor on the California

negligence claim for the same damages arising out of the

shooting.

COUNSEL

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.

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.

MENDEZ V. CONLEY 5

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

6 MENDEZ V. CONLEY

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

MENDEZ V. CONLEY 7

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

8 MENDEZ V. CONLEY

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

1

We held that damages should be awarded jointly against both

Pederson—who did not enter the shack—and Conley—who did. A

person who is an integral participant in an unlawful search is jointly

liable, even if the person does not enter the residence. Mendez, 815 F.3d

at 1195. This conclusion still holds.

MENDEZ V. CONLEY 9

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 the proximate cause analysis for the unlawful

entry—on which the officers did not benefit from qualified

immunity—from the proximate cause analysis for the failure

to knock and announce—on which they did. Id. at 1549.

On remand we must address whether the officers’

unlawful entry, as distinct from the unlawful mode of

entry—that is, the failure to knock and announce—was the

proximate cause of the Mendezes injuries. We hold that it

was. We also address the still remaining state law

negligence claims, and hold that California negligence law

provides an independent basis for recovery of all damages

awarded by the district court.

I

In our prior ruling we held that the officers engaged in a

search by entering the Mendezes’ home. Mendez, 815 F.3d

at 1187. The officers did not have a warrant or consent and

did not satisfy any emergency or exigency conditions that

could make an entry lawful. Id. at 1187–91. The law on all

these points was clearly established at the time, so the

officers could not obtain qualified immunity for their

unlawful search. Id. at 1191. There is no reason to revisit

those conclusions on remand: We again hold that the officers

violated the Fourth Amendment by engaging in an

unconstitutional entry into the Mendezes’ home.

10 MENDEZ V. CONLEY

A § 1983 claim creates a species of tort liability, with

damages determined “according to principles derived from

the common law of torts.” Memphis Cmty. Sch. Dist. v.

Stachura, 477 U.S. 299, 306 (1986). Such damages are

measured in terms of “compensation for the injury caused to

plaintiff by defendant’s breach of duty.” Id. Under this

analysis, we must first determine what act or omission

constituted the breach of duty, and then ask whether that act

or omission was the but-for and proximate cause of the

plaintiff’s injuries.

The parties dispute which act or omission constituted the

breach of duty. The officers argue that the failure to get a

warrant before entering was the omission constituting the

breach. Framed in that way, the officers argue, the breach of

duty did not cause the Mendezes injuries because, had the

officers first gotten a warrant, the same sort of confrontation

and shooting still could have occurred.

By contrast, the plaintiffs argue that the entry into the

shed was the act constituting the breach of duty. On this

framing of the issue, the officers’ breach of duty was the

cause in fact of the Mendezes’ injuries because, had the

officers not entered, the Mendezes would not have been

injured. For the reasons explicated below, we hold that on

either framing of the issue the officers’ unlawful behavior

was a proximate cause of the Mendezes’ injuries. But, as we

explain first, the plaintiffs’ framing of this issue is the correct

one. The officers’ framing of the issue conflates one of

several acts that would have discharged their duties under

the Fourth Amendment—getting a warrant—with an act

performed in violation of that duty—entering the residence.

Or, to put it another way, the officers’ argument

misconstrues the duty not to enter a home without a warrant

as a duty simply to get a warrant—overlooking the fact that

MENDEZ V. CONLEY 11

absent a warrant, consent, or exigent circumstances, there is

a duty not to enter.

To see why the plaintiffs’ account of the nature of the

officers’ duty is correct, we need look no further than the text

of the Fourth Amendment. The Fourth Amendment reads as

follows:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or

affirmation, and particularly describing the

place to be searched, and the persons or

things to be seized.

By its plain text the Fourth Amendment does two things.

First, the Fourth Amendment prohibits unreasonable

searches and seizures. See United States v. Jones, 565 U.S.

400, 404 (2012) (noting that a physical intrusion into a

property is a search under the Fourth Amendment). Second,

the Fourth Amendment specifies the conditions under which

a warrant can be issued.

The Fourth Amendment protects not only a person’s

broad interests in privacy, but also, and specifically, a

person’s interest in being shielded from physical

governmental intrusions. See Jones, 565 U.S. at 406 (“[F]or

most of our history the Fourth Amendment was understood

to embody a particular concern for government trespass

upon the areas (‘persons, houses, papers, and effects’) it

enumerates.”); Florida v. Jardines, 569 U.S. 1, 5 (2013)

(noting that in addition to privacy interests, the Fourth

Amendment protects citizens interests in being free from

physical intrusions).

12 MENDEZ V. CONLEY

The Fourth Amendment is often referred to as imposing

a “warrant requirement.” See Patel v. City of Los Angeles,

738 F.3d 1058, 1071 (9th Cir. 2013). This way of stating

things is not entirely inaccurate, but it can be misleading.

The Fourth Amendment does not require officers to get

warrants. Rather, it requires that officers not conduct

“unreasonable searches and seizures.” The role of the

Warrant Clause of the Fourth Amendment is simply to

specify one set of conditions under which an entry into a

residence can be reasonable—that is, where the officers have

a warrant that satisfies the conditions articulated in the

Warrant Clause. That is not, however, the only way that an

entry can be reasonable. Officers can also enter with

consent, or under certain emergency or exigent

circumstances. See Michigan v. Clifford, 464 U.S. 287, 293

(1984) (“[A]ny official entry must be made pursuant to a

warrant in the absence of consent or exigent

circumstances.”). An entry into a residence that is not under

a warrant, that lacks consent, and that is not justified by

exigent circumstances or an emergency is unreasonable. Id.

Under such circumstances, the Fourth Amendment imposes

a duty on officers not to enter. And it is entry itself that

constitutes the breach of that duty.

Similarly, an officer who wants to enter a property can

do so not only with a warrant but also with consent. But it

would be a mistake to conclude that an officer has a

freestanding duty to get consent. In normal circumstances,

if an officer does not have a warrant or consent or exigent

circumstances, the officer must not enter. Consent, much

like a warrant, changes an officer’s duties. It turns an

unlawful act into one that is lawful. But lawful entry remains

the key duty. For that reason, Justice Jackson explained in

McDonald v. United States: “Had the police been admitted

as guests of another tenant . . . they would have been legally

MENDEZ V. CONLEY 13

in the hallways. Like any other stranger they could then spy

or eavesdrop on others without being trespassers . . . . [but

by unlawfully entering through a window] they were guilty

of breaking and entering—a felony in law and a crime far

more serious than the one they were engaged in

suppressing.” 335 U.S. 451, 458 (1948) (Jackson, J.,

concurring).

That such duties between parties can change based on the

surrounding circumstances is a commonplace feature of law.

In tort law, for example, an act or omission can be a breach

of duty in one context, but not a breach of duty in another,

even if the act or omission itself has the exact same

propensity to cause harm. For example, when a person

operates a business and invites customers onto the property,

the business proprietor owes a duty to those customers to

make the premises safe. The business proprietor does not

owe a similar duty to a trespasser. Compare Restatement

(Second) of Torts § 333 (Am. Law Inst. 1981) (trespassers),

with id. § 343 (invitees). So, if a property owner negligently

leaves a hazard on the property, the owner can be liable to

the invitee, but not liable to the trespasser. The same act and

resulting injury is the basis for liability in one case, but not

in the other. The difference is only the presence or absence

of a duty owed to another, which makes the act tortious or

not. Similarly, a warrant functions to change what duties an

officer owes to a civilian. In a case where the officers

procure a valid warrant, their defense relates not to

causation, but to the fact that because they had a warrant

their entry was privileged and so not a breach of any duty

owed to the plaintiffs.

In summary, for the purposes of § 1983, a properly

issued warrant makes an officer’s otherwise unreasonable

entry non-tortious—that is, not a trespass. Absent a warrant

14 MENDEZ V. CONLEY

or consent or exigent circumstances, an officer must not

enter; it is the entry that constitutes the breach of duty under

the Fourth Amendment. As a result, the relevant counter-

factual for the causation analysis is not what would have

happened had the officers procured a warrant, but rather,

what would have happened had the officers not unlawfully

entered the residence.

II

In light of the foregoing analysis, we next determine

whether the unlawful entry was the cause in fact and the

proximate cause of the Mendezes’ injuries. See White v.

Roper, 901 F.2d 1501, 1505 (9th Cir. 1990). Here, as the

district court correctly found, there is no question that the

unlawful entry was the cause in fact of the injuries. If the

officers had not entered, Mr. and Ms. Mendez would not

have been shot while lying in bed. That is the quick end of

analysis of cause in fact.

Turning to the more difficult question of proximate

cause, we hold that the officer’s unlawful entry proximately

caused the Mendezes’ injuries. The proximate cause

question asks whether the unlawful conduct is closely

enough tied to the injury that it makes sense to hold the

defendant legally responsible for the injury. W. Page Keeton

et al., Prosser and Keeton on Torts § 42 (5th ed. 1984).

Proximate cause is “said to depend on whether the conduct

has been so significant and important a cause that the

defendant should be legally responsible.” Id. It is a question

of “whether the duty includes protection against such

consequences.” Id. We have held that “the touchstone of

proximate cause in a § 1983 action is foreseeability.”

Phillips v. Hust, 477 F.3d 1070, 1077 (9th Cir. 2007),

vacated on other grounds, 555 U.S. 1150 (2009). The

Supreme Court has observed that “[p]roximate cause is often

MENDEZ V. CONLEY 15

explicated in terms of foreseeability or the scope of the risk

created by the predicate conduct.” Paroline v. United States,

134 S. Ct. 1710, 1719 (2014). “A requirement of proximate

cause thus serves, inter alia, 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.” Id.

Whether understood in terms of the scope of the risk or

in terms of foreseeability, the findings of the district court

make clear that the officers’ entry into the structure was here

the proximate cause of the Mendezes’ injuries. This is not a

case where one can say that the injury to the Mendezes was

a mere fortuity. The injury followed in a normal course as a

result of the unlawful acts of the officers.

First, as a general matter, the risk of injury posed by the

entry of an armed stranger into a residence is one of the

reasons the Fourth Amendment prohibits entry except under

defined specific conditions. There is historical evidence

suggesting that the point of the Fourth Amendment’s

prohibition against trespass into homes was in part to prevent

damage done by the trespassers.

For instance, attendees at the Boston Town Meeting of

1772 raised concerns about damage done to chattels after

searches. See Maureen E. Brady, The Lost “Effects” of the

Fourth Amendment: Giving Personal Property Due

Protection, 125 Yale L.J. 946, 991 (2016). And anti-

federalists advocated for constitutional protections against

searches because otherwise the government could be free to

damage personal property when searching. Id. These

historical sources suggest that the Fourth Amendment was

ratified not just to protect privacy interests, but also out of a

concern that governmental trespass to property could lead to

subsequent physical harms. In modern times, the same

16 MENDEZ V. CONLEY

concern was voiced in Justice Jackson’s concurrence in

McDonald. Justice Jackson was concerned that unlawful

entries can invite precisely the sort of violence that occurred

here, where “an officer seeing a gun being drawn on him

might shoot first.” McDonald, 335 U.S. at 460–61.

We are not alone in recognizing that an armed officer’s

high-alert entry can foreseeably lead the officer to use deadly

force in response to a misapprehended threat. For instance,

in Attocknie v. Smith, a police officer unlawfully entered a

house and shot the son of a person the officer hoped to

apprehend. 798 F.3d 1252, 1255 (10th Cir. 2015). There,

like here, the shooting happened only moments after the

entry. Id. at 1254. The Tenth Circuit held that “a reasonable

jury could determine that the unlawful entry was the

proximate cause of the fatal shooting of [the victim].” Id. at

1258.

Looking to other cases involving unlawful entry—

including burglary—can be instructive in assessing the

proximate cause question. As evidenced by Justice

Jackson’s concurrence in McDonald, analogizing the acts of

officers who unlawfully enter to those of burglars is apt.

335 U.S. at 458. More recently, the Supreme Court has

noted that “[b]urglary is dangerous because it can end in

confrontation leading to violence.” Sykes v. United States,

564 U.S. 1, 9 (2011), overruled on other grounds by Johnson

v. United States, 135 S. Ct. 2551 (2015). And it has also

noted that burglary foreseeably creates the “possibility of a

face-to-face confrontation between the burglar and a third

party—whether an occupant, a police officer, or a

bystander.” James v. United States, 550 U.S. 192, 203

(2007), overruled on other grounds by Johnson v. United

States, 135 S. Ct. 2551 (2015). Stated another way, unlawful

entry invites violence.

MENDEZ V. CONLEY 17

Looking to the factual findings of the district court that

bear on the proximate cause analysis only reinforces the

conclusion that the entry was the proximate cause of the

Mendezes’ injuries. Here, the district court found that the

officers entered with weapons drawn. Mendez, 2013 U.S.

Dist. LEXIS 115099, at *11. The officers were aware, or

should have been aware that the Mendezes were residing in

the building in Hughes’ backyard. Id. at *34–35. The

officers were on alert, believing themselves to be searching

for an armed individual. Id. at *11. And as the district court

correctly observed, in light of the protections afforded by the

Second Amendment, which are at their height where defense

of one’s home is at stake, see District of Columbia v. Heller,

554 U.S. 570, 628–29 (2008), it can be expected that some

individuals will keep firearms in their homes to defend

themselves against intruders. Id. at *87–88. Under these

conditions, armed officers entering a house will necessarily

present a substantial risk to anyone in the house they

perceive as being armed. It is all the more important that

officers in such cases abide by their duties under the Fourth

Amendment.

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

18 MENDEZ V. CONLEY

alert, violent confrontations are foreseeable consequences of

unlawful entries.

The officers here suggest that any threat could be

diffused by requiring officers to knock and announce, and

hence, they argue that only the failure to knock and

announce—on which the officers have qualified

immunity—and not the entry itself was the proximate cause

of the Mendezes’ injuries. This argument is fallacious.

First, the injuries would have been equally avoided had the

officers not entered unlawfully without warrant or consent

or exigent circumstances. And had officers knocked and

announced, they still could not have lawfully entered absent

consent or exigent circumstances or a warrant. The officers’

argument ignores the fact that “it is common for injuries to

have multiple proximate causes.” Staub v. Proctor Hosp.,

562 U.S. 411, 420 (2011). Here, both the entry and the

failure to knock and announce were proximate causes of the

Mendezes’ injuries. Officers cannot properly escape

liability when they breach two duties, each breach being

necessary for the harm to occur, just because one of the

duties was subject to qualified immunity. That would lead

to the absurd result that an officer who breaches only one

duty is liable, but that an officer who breaches multiple

duties is not.

Consider a scenario like the one in this case, but where

Mr. Mendez is deaf. Suppose that officers do knock and

announce, but failing to catch Mr. Mendez’s attention,

proceed to unlawfully enter. In such a case, where a deaf

Mr. Mendez responded the same way as here, unaware that

the people entering were law enforcement officers, the

officers would still be liable as having violated Mr.

Mendez’s Fourth Amendment rights in a way that

proximately caused his physical injuries. To shield from

MENDEZ V. CONLEY 19

liability an officer who additionally breached the knock and

announce requirement would be manifestly unjust.

Further, the officers’ legal position in the earlier appeal

was that they had no duty to knock and announce before

entering the inhabited shed, as they had done so at the door

of the main house. We rejected that position, but agreed that

there was no clearly established law requiring a second

knock and announce at the doorway of a second occupied

building on the same property. Mendez, 815 F.3d at 1192–

93. On the officers’ view of the law, they had no knock and

announce duty. But they still had a duty not to enter

unlawfully, and that breach of duty could have foreseeably

led to the injury that occurred. This conclusion should not

change because we rejected the officers’ legal position on

the knock and announce requirement, yet held that they were

justified in holding it because the governing law at the time

of the incident was not clearly established.

Second, even if an officer knocks and announces his or

her presence, or seeks consent to enter, a homeowner may

reasonably still wish that the officer not enter, especially in

circumstances like this, where the officer has a weapon

drawn and is on alert. The reason why is obvious. An

innocent homeowner reasonably may believe that allowing

an agitated officer to enter the residence will substantially

increase the risk that a person, pet, or property inside might

be harmed. Police officers rightly remind the public that

they are required to make split-second decisions in very

difficult situations. See Tennessee v. Garner, 471 U.S. 1, 19

(1985). These split-second decisions cannot in every case

be made reliably so as to avoid harm to innocents. But these

imperfect life-or-death decisions demonstrate that entry by

an officer, on alert, with weapon drawn, can foreseeably

result in shooting injuries where the officer mistakes an

20 MENDEZ V. CONLEY

innocent implement for a weapon. Entry poses a foreseeable

and severe risk only partly mitigated by knocking and

announcing. Under circumstances like those presented here,

the safe course for the public and the one prescribed by the

Fourth Amendment, is for officers to remain outside, unless

or until they have a warrant or consent or exigent

circumstances arise.

III

Even if we were to accept the officers’ framing of the

issue and treat the failure to get a warrant rather than the

entry as the basis of the breach of duty, we would reach the

same conclusion regarding proximate cause. To procure a

warrant an officer must have probable cause. The probable

cause requirement erects a barrier against police intrusions

and the associated risk of harm, except where the intrusions

are adequately justified. The requirement thus represents the

balance we have struck as a society in defining when it is

permissible for an officer to impose a risk of harm on

innocent members of the public in service of the competing

social need to have effective law enforcement. But where

probable cause is lacking, imposing that risk cannot be

justified.

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

MENDEZ V. CONLEY 21

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. 2 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. Further attenuating probable

cause is that the only reason given for believing O’Dell was

in the Mendezes’ residence is that he was not in the main

house, and the officers thought they heard someone running

in that house.

Moreover, even if a magistrate could have properly

concluded that there was probable cause that O’Dell could

be located in the Mendezes’ residence—which we doubt—

requiring officers to get a warrant before entry serves

important interests. Consider the steps in the process of

gaining a warrant. Officers must first gather information that

satisfies the conditions set forth in the Warrant Clause of the

Fourth Amendment. That process invites officers to ask

whether they have sufficient justification for entering a

property. Then the officers must seek out an impartial

magistrate who will assess whether the officer’s proffered

justifications are adequate. Taken together, these two

processes play an important protective role. Among other

things, they require officers carefully to consider whether

they are justified in imposing a known risk on third parties

2

Sergeant Minster—who led the operation—stated that the

informant said that he had seen someone resembling O’Dell leaving the

Hughes residence by bike. There is some reason to believe that this was

not O’Dell at all. And even if it was, under those circumstances, it is

actually less likely that O’Dell was in Hughes’ house than that he was in

some other randomly selected house in the area. The officers had no

reason to believe that O’Dell would return to a house he had just left.

22 MENDEZ V. CONLEY

who might be inside the residence. They also force officers

to reflect on the circumstances facing them. This slower and

more deliberative process helps secure the rights and

interests of civilians to be free from unnecessary harms to

their property and their person. When a judicial officer is

interposed between the police and civilians, “potentially

fatal decisions[s] . . . [are] taken away from those on the

scene, whose judgment may be clouded by an

understandable, but perhaps misguided sense of urgency.”

Alexander v. City & County of San Francisco, 29 F.3d 1355,

1368–69 (9th Cir. 1994) (Kozinski, J., concurring); see also

Steagald v. United States, 451 U.S. 204, 212 (1981). Here,

“[b]y failing to take this constitutionally-required step, the

officers short-circuited the built-in safeguard of the warrant

requirement.” Alexander, 29 F.3d at 1368–69.

The importance of this slower and more deliberative

process is on display here. We concluded previously that

there were no exigent circumstances here justifying an

immediate entry. Mendez, 815 F.3d at 1189–90. It is likely

that if the officers had gone through the constitutionally

required warrant procedures before entering, they would

have remembered that the Mendezes’ lived in the building

behind the Hughes’ house, and taken account of the risks of

armed entry into an inhabited building. In such

circumstances a responsible officer would likely have taken

additional steps to prevent avoidable injuries to innocent

third parties. The process of having to collect information,

seek permission for entry from a magistrate, and justify that

entry, most clearly serves important social interests where a

warrant request is denied because it creates a barrier

protecting persons from unnecessary harm at the hands of

police. But this process also protects individuals even when

the warrant is granted, because it serves an important

purpose of encouraging considered reflection before officers

MENDEZ V. CONLEY 23

take action. Here, the failure to engage in this deliberative

process foreseeably led to the Mendezes’ injuries.

IV

The officers also argue that their entry was not the

proximate cause of the Mendezes’ injuries because Mr.

Mendez’s action of moving the gun so that it was pointed in

the direction of the officers was a superseding cause of the

injuries. We disagree. To be sure, officers are free from

liability if they can show that the behavior of a shooting

victim was a superseding cause of the injury. A superseding

or intervening cause involves a shifting of responsibility

away from a party who would otherwise have been

responsible for the harm that occurs. Keeton et al., supra,

§ 44. If a resident sees that an officer has entered and

intentionally tries to harm the officer, who in turn draws his

weapon and shoots, the resident’s intentional action would

be a superseding cause of the injury. See, e.g., Bodine v.

Warwick, 72 F.3d 393, 400 (3d Cir. 1995) (noting that if a

suspect were to shoot at persons known to be officers, the

suspect’s act would be a superseding cause absolving the

officers of liability for harm caused as a result of an unlawful

entry).

However, the hypothetical situation imagined in Bodine

has no purchase here. The district court found that Mr.

Mendez was napping on a futon with a BB gun by his side

when the officers entered. Mendez, 2013 U.S. Dist. LEXIS

115099 at *13. Moments after the officers entered, Mr.

Mendez moved the BB gun. Id. at *14. Almost immediately

the officers began to fire upon the Mendezes. Id. at *15. Mr.

Mendez had no idea that the persons entering his home were

police officers, making this situation wholly unlike the

hypothetical posed in Bodine. And Mr. Mendez did not

24 MENDEZ V. CONLEY

deliberately aim at the intruding officers; he was moving the

gun, seemingly so he could rise.

Under basic tort principles, something is a superseding

cause only if it is “a later cause of independent origin that

was not foreseeable.” Exxon Co. v. Sofec, 517 U.S. 830, 837

(1996). A victim’s behavior is not a superseding cause

where the tortfeasor’s actions are unlawful precisely because

the victim foreseeably and innocently might act that way.

See Restatement (Second) of Torts § 449 (Am. Law Inst.

1981) (noting that subsequent events that explain why the

act was negligent are not superseding causes); Farr v. N.C.

Mach. Co., 186 F.3d 1165, 1170 (9th Cir. 1999) (noting that

where “the risk that materialized was the one threatened by

the [tortious act],” acts of the victim are not superseding

causes). So 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 explained above, among 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.

Moreover, under basic tort principles, foreseeability is

looked at retrospectively when assessing whether an

intervening event is a superseding cause. And an event will

MENDEZ V. CONLEY 25

be a superseding cause only if it is extraordinary in

retrospect. See Restatement (Second) of Torts § 443 cmts.

b, c (Am. Law Inst. 1981) (noting that only an act that is

abnormal or extraordinary in retrospect serves as a

superseding cause). Here, there is nothing extraordinary

about the possibility that officers might mistake an innocent

implement for a threat. Nationally prominent events in

publicized police shootings show that such a possibility is

sadly all too common.

Nothing about Mr. Mendez’s innocent actions warrants

shifting responsibility for the subsequent shooting injuries

away from the officers and to the injured victim. And this is

precisely what the district court correctly held. “Mr.

Mendez’s ‘normal efforts’ in picking up the BB gun rifle to

sit up on the futon do not supersede Deputies Conley and

Pederson’s responsibility.” Mendez, 2013 U.S. Dist. LEXIS

115099 at *87.

V

We next turn to the plaintiffs’ California negligence

claim. We did not address this claim in our prior ruling, nor

did the Supreme Court address the California law claim in

its decision. We now resolve the Mendezes’ cross-appeal

and hold that under the California Supreme Court’s decision

in Hayes v. County of San Diego, judgment should be

entered in the Mendezes’ favor on the California negligence

law claim. The district court did not grant relief under

California negligence law because the court believed that

under then existing California law, negligence is assessed

based only on the state of affairs at the moment of the

shooting, and not in light of pre-shooting conduct. Mendez,

2013 U.S. Dist. LEXIS 115099 at *93. But after the district

court entered judgment the California Supreme Court

clarified that “law enforcement personnel’s tactical conduct

26 MENDEZ V. CONLEY

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, 57 Cal. 4th at 639. 3

Here, the district court’s findings compel the conclusion

that the officers were negligent under California law. The

district court specifically found that the “totality of Deputies

Conley and Pederson’s conduct was reckless as a matter of

tort law,” and that “the conduct rose beyond even gross

negligence.” Mendez, 2013 U.S. Dist. LEXIS 115099, at

*97, *82; see also Mendez, 815 F.3d at 1194 (“the record

here bears out Conley and Pederson’s recklessness”). It is

beyond negligent for officers to enter a dwelling with guns

drawn and without announcing their presence, especially

when they are on notice that the dwelling is occupied by a

third party, unless there are special circumstances that might

justify such action. No such special circumstances were

present in this case, and it is foreseeable that such reckless

behavior can lead to tragic accidents like the one that

occurred here.

3

The district court had told the parties that it would revisit its

judgment in light of Hayes, which was pending at the time. The plaintiffs

asked the court to do so, but the court refused on procedural grounds

because the Mendezes filed a document styled as a “request” rather than

styled as a motion. We review a district court’s procedural

determinations regarding local rules for abuse of discretion. Kalitta Air

L.L.C. v. Cent. Tex. Airborne Sys. Inc., 741 F.3d 955, 957 (9th Cir. 2013).

Here the district court told the parties that it would revisit its judgment

on its own motion if appropriate in light of Hayes. In light of this

representation to the parties, and the obvious relevance of Hayes, the

district court should have addressed the issue on its own without

prompting by the plaintiffs. To then dismiss the plaintiff’s request on

procedural grounds was an abuse of discretion, because the plaintiffs

were reasonably relying on the district court’s representation.

MENDEZ V. CONLEY 27

We note that the officers’ failure to knock and announce

is an especially dangerous omission. Under California law,

the officers here are not entitled to qualified immunity for

that lapse. Venegas v. County of Los Angeles, 63 Cal. Rptr.

3d 741, 755 (Ct. App. 2007); Robinson v. Solano County,

278 F.3d 1007, 1016 (9th Cir. 2002). 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 officers argue that we earlier held that they behaved

reasonably in failing to knock and announce. We did not.

We held that under federal law applicable to the § 1983

claim, the officers had qualified immunity because it was not

clearly established at the time that, under the circumstances,

the failure to knock and announce was a federal

constitutional violation. Mendez, 815 F.3d at 1192. Under

the evolving precedent of qualified immunity, officers can

receive qualified immunity under 42 U.S.C. § 1983 for acts

that are negligent under state common law. See Robinson,

278 F.3d at 1016 (holding that qualified immunity applied to

claims under § 1983, but not to state law negligence claims).

Applying the “clearly established” requirement of the

qualified immunity analysis to all state common law

negligence claims would effectively eviscerate state

common law. See Johnson v. Bay Area Rapid Transit Dist.,

724 F.3d 1159, 1171 (9th Cir. 2013) (“the doctrine of

qualified immunity does not shield defendants from state law

claims”). And here it would make meaningless the

California Court of Appeals’ express holding that there is no

qualified immunity for state law negligence claims. See

28 MENDEZ V. CONLEY

Venegas, 63 Cal. Rptr. 3d at 755. We decline to apply a

doctrine that has evolved in the narrow and unique context

of § 1983 claims in a way that would undermine state law

that expressly departs from the federal standard concerning

qualified immunity.

Finally, the defendants contend that the negligence claim

is barred by two kinds of state law statutory immunity. First,

they argue that California Government Code section 821.6

immunizes the officers from liability. Section 821.6

provides: “A public employee is not liable for an injury

caused by his instituting or prosecuting any judicial or

administrative proceedings within the scope of his

employment, even if he acts maliciously and without

probable cause.” Cal. Gov’t Code § 821.6. And they claim

that this immunity has been extended to protect officers

engaged in investigations leading up to formal proceedings.

We have rejected similar arguments in the past. Sharp v.

County of Orange, 871 F.3d 901, 920–21 (9th Cir. 2017)

(“[t]he ‘prosecutorial’ immunity under Cal. Gov. Code

§ 821.6 does not apply because it is limited to malicious-

prosecution claims.” (citing Sullivan v. County of Los

Angeles, 12 Cal. 3d 710, 117 (1974))); Blankenhorn v. City

of Orange, 485 F.3d 463, 467 (9th Cir. 2007) (holding that

section 821.6 immunity applies only to acts done in

furtherance of an investigation into a crime).

Second, the officers also claim immunity under

California Government Code section 820.2, which provides

immunity to public employees from liability for injuries

“resulting from his act or omission where the act or omission

was the result of the exercise of discretion vested in him,

whether or not such discretion be abused.” Cal. Gov’t Code

§ 820.2. However, the California Supreme Court has held

that this immunity applies only to policy decisions, not to

MENDEZ V. CONLEY 29

operational decisions like the decision to enter the Mendez

residence here. See Caldwell v. Montoya, 10 Cal. 4th 972,

981 (1995); see also Sharp, 871 F.3d at 920. Hence, section

820.2 immunity does not apply.

VI

We affirm the district court’s holding that officers

Conley and Pederson are liable for violations of the

Mendezes’ Fourth Amendment rights. On remand, the

judgment shall be amended to award all damages arising

from the shooting in the Mendezes’ favor as proximately

caused by the unconstitutional entry, and proximately caused

by the failure to get a warrant. Judgment shall also be

entered in the Mendezes’ favor on the California negligence

claim for the same damages arising out of the shooting. 4

AFFIRMED IN PART, REVERSED IN PART.

4

Plaintiffs are also entitled to reasonable attorney fees. 42 U.S.C.

§ 1988.

Costs on appeal shall be borne by the defendants.