Opposition Brief — Cnty. of L. A. v. Mendez, 137 S. Ct. 1240 (2017) (No. 16-369)

FILED

OCT 24 206

Bn the Supreme Court ot the Bnited States

COUNTY OF LOS ANGELES, CHRISTOPHER CONLEY

AND JENNIFER PEDERSON,

Petitioners,

Vv.

ANGEL MENDEZ AND JENNIFER LYNN GARCIA,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

LEONARD J. FELDMAN

Counse! of Record

TomMAS A. GAHAN

PETERSON WAMPOLD ROSATO LUNA KNOPP

1501 4TH AVENUE, SUITE 2800

SEATTLE, WA 98101

(206) 624-6800

feldma n@pwrik.com

Counsel for Respondents

QUESTIONS PRESENTED

Deputies Christopher Conley and Jennifer

Pederson shot Respondents Angel and Jennilcr

Mendez repeatedly after entering their home

witheut a warrant. The Ninth Circuit below not

only affirmed the district court's ruling that the

offivers violated clearly established Fourth

Amendment law when they entered Respondents

home. u coneluded that whether the officers were

“plainly incompetent” was “quite debatable” \pp.

MOa. Unlike many cases invelying police shootings.

Respondents had not committed a crime and were

not suspected of domgy so: they were simply Iving

on a futon in the wooden shack in which they

resided. Yet as a direct result of Petitioners

unlawful conduct, Mr. Mendez was shot numerous

times, his right Jeg was amputated below the knec.

and Ales. Mendez was shot im the back. The

questions presented ire:

1. Whether the Ninth Cirewit’s proximate

cause analysis conflicts with decisions of this Court

or other circuits.

2. Whether the Ninth Cirewt = correctly

firmed the district court's findmg that the

deputies unlawful conduct proximately caused

Petitioners myuries.

3. Whether the Ninth Cireuit correctly held

that Petitioners are not entitled to qualified

immunity.

os

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............cccccscccscssseseseeeeees i

yy ft, EN iv

STATEMENT OF THE CASE ..................22--00-ceseeeee l

REASONS FOR DENYING THE PETITION......... 5

I. THE NINTH CIRCUIT'S PROVOCATION

ANALYSIS DOES NOT WARRANT THIS

IIE sercnnsscdeninsependtnnimmbadsupenseees 5

A. The Ninth Circuit Has Expressly

Limited Its Provocation Analysis

Such That Plaintiffs Must Establish

The Traditional Elements Of A

Section 1983 Claim, Including

ne idiaenenenn 5

B. The Ninth Circuit’s Provocation

Analysis Does Not Conflict With

Decisions Of This Court.............................. 7

C. The Provocation Analysis Also Does

Not Conflict With Decisions Of Other

RIES cet A a a I i 12

D. Contrary to Petitioners’ Argument,

The Ninth Circuit’s Provocation

Analysis — As Applied In This Case —

Protects Botn Police Officers And

Innocent Individuals Like

NES Se 8s OEE EER ae 18

ill

Il. THE NINTH CIRCUIT CORRECTLY

CONCLUDED THAT RESPONDENTS

CAN ALSO RECOVER DAMAGES

UNDER “BASIC NOTIONS OF

EN 20

Ill. THE NINTH CIRCUIT'S QUALIFIED

IMMUNITY RULING ALSO DOES NOT

WEREEEIEEUE FEED EIBOY 5cccccccncceccsesccenscnseees: Sinctnas 23

IV. THIS CASE IS A POOR VEHICLE FOR

REVIEWING THE CLAIMED

eg 28

IT teintiitnscnsecdnisctnnnaricisuinnccnsdcnuteosinneennsite al

1V

TABLE OF AUTHORITIES

Page(s)

Cases

Alexander v. City & County of

San Francisco,

29 F.3d 1355 (9th Cir. 1994) ....................... passim

Anderson v. City of Bessemer City, N.C.,

470 U.S. 564 (19885) ..................... ee oA 11

Attocknie v. Smith,

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

cert. denied, 136 S. Ct. 2008 (2016)... 13

Billington v. Smith,

292 F.3d 1177 (9th Cir. 2002) .....0000.. 0.0.0... passim

Bodine v. Warwick,

72 F.3d 393 (3d Cir. 1995.....0000000..... 12, 13, 16, 20

Burns v. PA Dep't of Corr.,

642 F.3d 163 (3d Cir. 2011) -.00.00....0 ee eee 14

Carey v. Piphus,

ET A 10

City and County of San Francisco

v. Sheehan,

es I .._ .. cavecctncseensneseors 7, 16

Distatct of Columbia v. Heller,

554 U.S. 570 (2008) .................cceceeceseseceeees 18, 19

Drumgold v. Callahan,

707 F.3d 28 (Ist Cir. 2013)..................cccccccsceeeee 14

Duran v. City of Maywood,

221 F.3d 1127 (9th Cir. 2000) ......00.....0cec eee. 5, 6

El-Ghazzawy v. Berthiaume,

636 F.3d 452 (8th Cir. 2011) 2000000... 30

Estate of Sowards v. City of Trenton,

125 Fed. Appx. 31 (6th Cir. 2005).........00...0000.... 21

Vv

Estate of Starks v. Enyart,

5 F.3d 230 (7th Cir. 1993) ..000000000.00.... Sa

Graham v. Connor,

I I ici scccccecceveosncoeseonesceetietes 7, 8,9

Havden v. Nevada Ctv.. AR.

664 F.3d 770 (8th Cir. 2012) ............00.0...-ee cece 14

Hector v. Watt,

235 F.3d 154 (3d Cir. 2000)........0.00.0..0cccc ee. 16, 22

Herzog v. Vill. of Winnetka.

309 F.3d 1041 (7th Cir. 2002) .0000000000... ole 14

Hope v. Pelzer,

Be i UIE wocnccccccccececccseccscess aeahislas .. 23

Jackson v. Sauls,

206 F.3d 1156 (11th Cir. 2000) ..........00000000000000.. 14

James v. Chavez,

511 Fed. Appx. 742 (10th Cir. 2013) ....00000000000... 21

Kane v. Lewis,

604 Fed. Appx. 229 (4th Cir. 2015)... 21

Kuarby v. Duva,

530 F.3d 475 (6th Cir. 2008) «2.0.0.0... 0 .oc cece eens 17

Lamont v. New Jersey,

637 F.3d 177 (3d Cir. 2011)..........0.00.... iene 21

Livermore v. Lubelan,

476 F.3d 397 (6th Cir. 2007) ........... Seine 16, 17

Malley v. Briggs,

ED iis SI EID os coiccnecesccosvsccsccne nesses 10, 26, 27

Medina v. Cram,

252 F.3d 1124 (10th Cir. 2001) 2.00000... 15

Memphis Cmty. Sch. Dist. v. Stachura,

ee IE... ss ccun vscaniiinteudgualiaennbaaane 31

Monroe v. Pape,

te SSC etoe mene ere 10

Paroline v. United States,

SO Ce, TPM I vscceseccsscccccsecsccccencsesccsbesious 10

vi

Pauly v. White,

814 F.3d 1060 (10th Cir. 2016) ................... passim

Payton v. New York,

ee ID a ccccesccsecosccccevescrecresess eres,

Powers v. Hamilton Cty.

Pub. Def. Comm'n,

501 F.3d 592 (6th Cir. 2007) .....2.0020. 22.0. ceee eee 14

Raub v. Campbell,

785 F.3d 876 (4th Cir),

cert. denied, 136 S. Ct. 503 (2015) .....-. 13

Ribbewv v. Cox,

222 F.3d 1040 (8th Ci. 2000) ...000 15

Saucier v. Katz,

ee 23

Sigley v. City of Parma Heights,

437 F.3d 527 (6th Cir. 2006) 0000000... 16

Singer v. Fulton Cty. Sheriff

63 F.3d 110 (2d Cir. 1995)... cece 14

Sledd v. Lindsay,

102 F.3d 282 (7th Cir. 1996) ..0...000. ccc 25

Steagald v. United States,

i ccesenssseseons passim

Tennessee v. Garner,

ee cassecevevenssseceseus 9, 15

Tenorio v. Pitzer,

802 F.3d 1160 (10th Cir. 2015),

cert. denied, 136 S. Ct. 1657 (2016)................... 15

Tolan v. Cotton,

I .... ccecenssesscnssncesees 23

United States v. Johnson,

256 F.3d 895 (9th Cir. 2001) ....000000000000. 3, 9, 24

Welsh v. Wisconsin,

I ccscnensevesnenes 3, 9, 24

vl

Whirl v. Kern,

407 F.2d 781 (5th Cir. 1968) 0 ee. 14

Yates v. City of Cleveland,

941 F.2d 444 (6th Cir. 1991) ........................ 25, 30

Young v. City of Providence

ex rel. Napolitano,

404 F.3d 4 (1st Cir. 2005)..........00000.... PS ERIE 15

Statutes

TE csortsaicennsincinessieneeianhdiiensienetediniads passim

STATEMENT OF THE CASE

1. The events leading to Respondents’ injuries

began on October 1, 2010, when Deputies Conley

and Pederson met with several other police officers

to organize a search for a “parolee-at-large” named

Ronnie O'Dell. According to a_ confidential

informant, “a man fitting O’Dell’s description was

riding a bicycle in front of a residence owned by a

woman named Paula Hughes.” App. 58a 4 19. The

officers proceeded to the Hughes residence. Acting

without a warrant, the officers scarched the

residence, but did not find O’Dell.

Still acting without a search warrant, Deputy

Pederson decided to “go ahead and clear the

backyard.” App. 5a. During the briefing that

preceded the search of the Hughes residence, the

officers were told that “a male named Angel

(Mendez) lived in the backyard of the Hughes

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

App. 59a 9 25.!. Mr. Mendez was a high school

friend of Hughes, and she had allowed him to

construct and live in a shack in her backyard.

Pederson admitted that she heard that

announcement. App. 59a 4 26.

Knowing that Mr. and Mrs. Mendez lived in

the shack behind the Hughes residence, Pederson

' Consistent with the district court decision, this Brief In

Opposition refers to Respondent Jennifer Lynn Garcia as

“Mrs. Mendez” since she and Mr. Mendez “were living

together as a couple when the shooting occurred and

thereafter married.” App. 56a 4 1.

2

proceeded through the backyard to search the

shack. She was joined by Deputy Conley, who was

also present during the earlier briefing. Pederson

and Conley “did not knock and announce their

presence at the shack,” and Conley “did not feel

threatened.” App. 66a 44 98, 104. With their guns

drawn, Conley opened the door to the shack and

pulled back the blanket used as insulation. Just as

the officers had been told at the earlier briefing,

Mr. and Mrs. Mendez were inside.

Mr. Mendez kept a BB gun in the shack to

shoot rats, mice, and other pests. When the door

opened, Mr. Mendez moved the BB gun so that he

could sit up. When Conley saw the BB gun, he

yelled “gun!” and the two officers then fired fifteen

shots at Respondents. Mrs. Mendez was shot in the

back, and Mr. Mendez was shot in the right arm,

right shin, right hip, lower back, and left foot. Mr.

Mendez’s right leg was subsequently amputated

below the knee.

2. Respondents sued Pederson and Conley

under § 1983, alleging a violation of their Fourth

Amendment rights. Relevant here, the district

court found, after a bench trial, that the officers’

actions were not justified by any exception to the

warrant requirement and that the officers were not

entitled to qualified immunity. ER 88a-99a. The

court awarded roughly $4 million in damages,

including over $816,000 for past medical bills and

over $500,000 for future medical care for both Mr.

and Mrs. Mendez and prosthesis upkeep and

replacement for Mr. Mendez.

3

3. Petitioners appealed, and a unanimous

Ninth Circuit panel affirmed. Addressing the

deputies’ reasons for searching the Hughes

property, the Ninth Circuit noted: “Although the

question is quite debatable, we will assume without

deciding that the officers were not ‘plainly

incompetent.” App. 10a. As “just one

consideration,” the Ninth Circuit explained that

“[ulnless [O’Dell] was riding in circles, he would

have passed the house before the officers arrived.”

App. lla n.5. Additionally, “the deputies lacked

any credible information that [O'Dell] was in

Plaintiffs’ shack.” App. 14a. Indeed, Conley

admitted in the district court that he “didn’t have a

specific belief that [O’Dell] was in fact in there.”

App. 37a (quoting testimony).

Based on the district court’s detailed findings

— and recognizing that all facts must be construed

“in the lght most favorable to the factfinder’s

verdict and the non-moving parties” (App. 7a) — the

Ninth Circuit concluded that Petitioners had

unlawfully searched Respondent’s residence “in an

attempt to execute an arrest warrant for a parolee

that, at most, may have been on the property,”

which the court held was “contrary to” Steagald v.

United States, 451 U.S. 204 (1981), Welsh v.

Wisconsin, 466 U.S. 740 (1984), and United States

v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001). App.

24a (emphasis in original). The Ninth Circuit

ultimately agreed wit the district court that “the

deputies violated clearly established Fourth

Amendment law when entering the wooden shack

without a warrant.” App. 18a.

4

Turning to proximate causation, the Ninth

Circuit again upheld the district court’s analysis.

Applying a “provocation” analysis, the Ninth

Circuit agreed with the district court that “because

the officers violated the Fourth Amendment by

searching the shack without a warrant, which

proximately caused the plaintiffs’ injuries, lability

was proper.” App. 22a. The Ninth Circuit further

held that “even without relying on our Circuit’s

provocation theory, the deputies are liable for the

shooting under basic notions of proximate cause.”

App. 24a. Having so held. the Ninth Circuit

affirmed the district court’s judgment in favor of

Respondents. App. 26a.

4. Petitioners thereafter filed a_ timely

Petition For Rehearing En Banc, which the Ninth

Circuit denied. App. 137a-138a. According to the

Ninth Circuit’s Order, “[t]he full court has been

advised of the Petition For Rehearing En Banc and

no judge of the court has requested a vote.” App.

138a. Petitioners now ask this Court to review the

same arguments that the Ninth Circuit

unanimously rejected.

5

REASONS FOR DENYING THE PETITION

I. THE NINTH CIRCUITS PROVOCATION

ANALYSIS DOES NOT WARRANT THIS

COURT'S REVIEW.

A. The Ninth Circuit Has Expressly Limited

Its Provocation Analysis Such That

Plaintiffs Must Establish The Traditional

Elements Of A Section 1983 Claim,

Including Proximate Cause.

The Ninth Circuit first articulated a so-called

“provocation doctrine” in Alexander v. City &

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

1994). In Alexander, police officers shot and killed

a mentally ill man who had threatened to shoot the

officers if they entered his house and had

attempted to shoot the officers after they broke

down his door. /d. at 1358. The Ninth Circuit held

that the police could be liable for shooting the man

because they “used excessive force in creating the

situation which caused [the man} to take the

actions he did.” /d. at 1366. As the Ninth Circuit

below noted, this analysis is sometimes referred to

as the “provocation doctrine.” App. 22a.

But while the Ninth Circuit has continued to

refer to the analysis in Alexander as _ the

“provocation doctrine,” it substantially limited the

role and effect of that rubric in Duran v. City of

Maywood, 221 F.3d 1127 (9th Cir. 2000). The

plaintiff in Duran argued that the district court

should have instructed the jury that, under

Alexander, the defendant police officers could

violate the Fourth Amendment merely by

6

provoking the use of deadly force. /d. at 1130-31.

The Ninth Circuit rejected the argument and

clarified that “there must be evidence to show

[1] that the officer's actions were excessive and

unreasonable, and [2] that these actions caused an

escalation that led to the shooting.” /d. at 1131

(emphasis added). Because there was no such

evidence in Duran, the Ninth Circuit upheld the

jury’s defense verdict. /d.

Two years later, in Billington v. Smith, 292

F.3d 1177, 1188 (9th Cir. 2002), the Ninth Circuit

expressly recognized that it had “placed important

limitations on A/exander.” The court “read

Alexander, as limited by Duran, to hold that where

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.” Jd. at 1189 (emphasis added). The

court then turned to damages and explained that if

a plaintiff can establish an independent Fourth

Amendment violation, then “liability is established,

and the question becomes the scope of liability, or

what harms’ the _ constitutional violation

proximately caused.” Id. at 1190 (emphasis added).

In short, following Billington, what remains are

two issues: (1) whether the defendant violated the

plaintiffs constitutional rights; and (2) what harms

were proximately caused by that violation. These,

of course, are the same basic issues that courts

decide in all cases alleging constitutional torts.

The Ninth Circuit below applied these legal

principles and adhered to the same requirements.

Starting with the independent Fourth Amendment

7

violation required by Billington, the Ninth Circuit

affirmed the district court’s holding that “the

officers violated the Fourth Amendment by

searching the shack without a warrant.” App. 22a.

Significant here, Petitioners do not challenge that

holding. The Ninth Circuit then turned to the

proximate cause analysis — also required by

Billington — and affirmed the district court’s

holding that the officers’ unconstitutional conduct

“proximately caused the plaintiffs’ injuries.” /d

Having analyzed both whether there was an

independent constitutional violation and whether

that violation proximately caused Plaintiffs’

injuries, the Ninth Circuit agreed with the district

court that “liability was proper” and affirmed. /d.

B. The Ninth Circuit’s Provocation Analysis

Does Not Conflict With Decisions Of This

Court.

Contrary to Petitioners’ argument (Pet. 16-18),

the Ninth Circuit’s provocation analysis does not

conflict with this Court’s precedent. In City and

County of San Francisco v. Sheehan, 135 S. Ct.

1765, 1776 n.4 (2015) (hereinafter “Sheehan”), the

Court stated that its citation to Alexander and

Billington did not suggest agreement or

disagreement with those cases. Significant here,

the Court did not identify any conflict between

those cases and its own precedent. Nor is that

surprising, as the Ninth Circuit emphasized in

Billington that the provocation analysis “must be

kept within the Fourth Amendment's

reasonableness standard” as set forth in Graham v.

Connor, 490 U.S. 386, 395 (1989), and “must be

read consistently with the Supreme Court's

8

admonition in Graham” that courts must judge

reasonableness “from the perspective of a

reasonable officer.” Billington, 292 F.3d at 1190 &

n.73 (footnote and internal quotation marks

omitted). The Ninth Circuit, in other words,

appears to have recognized that the provocation

analysis as set forth in A/exander could potentially

sweep too broadly and has therefore emphasized

that the doctrine must be applied consistently with

Graham. If there was a conflict with this Court’s

precedent in 1994 when the Ninth Circuit first

articulated the provocation analysis, it was

eliminated in 2002 when the Ninth Circuit issued

its opinion in Billington.

Ignoring the Ninth Circuit’s clear admonition

in Billington that the provocation analysis must be

applied consistently with Graham, Petitioners

nevertheless claim that the Ninth Circuit’s analysis

“contravenes Graham’ because it purportedly holds

police officers “civilly responsible for a reasonable

use of force.” Pet. 16 (emphasis in original). A

critical flaw in this argument is that the Ninth

Circuit did not find lability on an excessive force

claim. App. 6a. Nor is Petitioners’ use of force the

“independent Fourth Amendment violation”

required by Sillington. Instead, as the Ninth

Circuit explained, the basis for liability was the

district court’s finding that “the officers violated the

Fourth Amendment by searching the shack without

a warrant, which proximately caused the plaintiffs’

injuries.” App. 22a. Graham does not address

unlawful entry claims, which is the sole claim at

issue here.

9

The Ninth Circuit below also did not apply

Graham to Respondents’ unlawful entry claim.

App. 22a-24a. Instead, it relied principally on

(1) Steagald v. United States, 451 U.S. 204, 211-12

(1981), which holds that a warrantless entry into a

home to conduct a search is unreasonable “[albsent

exigent circumstances,” (2) Welsh v. Wisconsin, 466

U.S. 740, 753 (1984), which ho.Js 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,” and

(3) United States v. Johnson, 256 F.3d 895, 908

(9th Cir. 2001), which forbids “warrantless searches

while investigating a suspect’s whereabouts.” App.

24a. Those cases, unlike Graham, address whether

and when police can conduct warrantless searches,

which is the basis for liability here. App. 22a.

Moreover, nothing in Graham precludes lower

courts from considering all of the facts and

circumstances in deciding Fourth Amendment

claims. To the contrary, the Court emphasized that

“the test of reasonableness under the Fourth

Amendment is not capable of precise definition or

mechanical application” and that “its proper

application requires careful attention to the facts

and circumstances of each particular case.”

Graham, 490 U.S. at 396 (internal quotation marks

omitted). Quoting Tennessee v. Garner, 471 U.S. 1,

8-9 (1985), the Court reiterated that the question is

“whether the totality of the circumstances

justifies] a particular sort of ... seizure.” Graham,

490 U.S. at 396. The Court thus required lower

courts to carefully consider a// of the relevant facts

and circumstances and did not hold that any facts

10

or circumstances should be ignored in deciding

Fourth Amendment claims. Indeed, as discussed in

Section I.C below, several lower courts have

expressly noted that any such limitation would be

inconsistent with the “totality of the circumstances”

approach inherent in the Court’s reasonableness

standard for Fourth Amendment claims.

The Ninth Circuit's analysis of the proximate

cause issue — as required by Ai/lington and in

accordance with basic principles of tort law (the

underlying principles are the same) — also does not

conflict with this Court’s precedent. As the Ninth

Circuit noted, this Court has expressly held that

§ 1983 “should be read against the background of

tort liability that makes a man responsible for the

natural consequences of his actions.” App. 24a

(quoting Malley v. Brizes, 475 U.S. 335, 344 n.7

(1986), and Monroe v. Pape, 365 U.S. 167, 187

(1961)). Quoting Paroline v. United States, 134 S.

Ct. 1710, 1719 (2014), the Ninth Circuit added that

“[plroximate 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.” App. 24a; see also Carey v. Piphus,

435 U.S. 247, 254 (1978) (“the basic purpose of a

§ 1983 damages award should be to compensate

persons for injuries caused by the deprivation of

constitutional rights” (emphasis added)). Here too,

there is no conflict between the Ninth Circuit’s

analysis and this Court’s precedent.

11

What remains is a factual issue. Mr. Mendez

testified at trial that he had just fallen asleep

before he heard “the door come open on the shed,”

which caused him to “come out of bed and ... lift the

gun off the bed” “in reaction to the door coming

open.” Dkt. 246 at 6:9-17, 7:9-15, 8:3-7, 9:18-20

(emphasis added). When asked if he “would

describe [his] movement in getting out of the bed as

a fast one,” Mr. Mendez replied. “Yes, because |

was startled.” /d. at 13:2-4. After hearing this

testimony and the testimony of the officers, the

district court found that when the officers opened

the door to his residence, Mr. Mendez moved his

BB gun “so that he could put his feet on the floor of

the shack and sit up” and that this movement

caused Pederson and Conley to fire their weapons.

App. 68a-69a 94119, 127. This evidence amply

supports the district court’s ruling that “the

conduct of Deputies Conley and Pederson was the

proximate cause of Mr. and Mrs. Mendez’s

injuries.” App. 126a-127a. To set aside this

finding, Petitioners must establish — and the Court

must find — that it is “clearly erroneous, and due

regard shall be given to the opportunity of the trial

court to judge the credibility of the witness.”

Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 573 (1985). Petitioners do not even attempt to

make that showing. Even if they had, that is

hardly the sort of issue that warrants this Court’s

review.

12

C. The Provocation Analysis Also Does Not

Conflict With Decisions Of Other

Circuits.

The Ninth Circuit’s provocation analysis also

does not conflict with decisions in other circuits.

Contrary to Petitioners’ argument (Pet. 18-19),

Justice (then Circuit Judge) Alito’s opinion in

Bodine v. Warwick, 72 F.3d 393 (3d Cir. 19985),

provides strong support for the Ninth Circuit’s

analysis below. In Bodine, the Third Circuit made

clear that an officer’s liability for unlawful conduct

is to be determined by “basic principles of tort law.”

Id. at 400. As a result, police officers who illegally

enter a suspect's home “would not be liable for

harm produced by a ‘superseding cause.” /d.

Conversely, “the troopers would be liable for the

harm ‘proximately’ or ‘legally’ caused by their

tortious conduct.” /d. (emphasis added). The Ninth

Circuit’s provocation analysis, as discussed in

Section I.A above, is no different in that respect: it

holds police officers liable for harm that is

proximately caused by their unlawful conduct.

The Third Circuit in Bodine also provided a

hypothetical, instructive here, where there is both

an illegal entry claim and an excessive force claim.

The court held that if the jury were to determine

“that the troopers’ entry was unlawful, it will be

necessary to determine how much of the injury

suffered by Bodine was proximately or legally

caused by the illegal entry.” 72 F.3d at 400. The

court also recognized that while the illegal entry

and excessive force claims are separate, “[t]he harm

proximately caused by these two torts may

overlap.” Jd. at 400-01. Regardless of any such

13

overlap, the police officers are liable for whatever

harm was proximately caused by their unlawful

conduct. That is precisely what the lower courts

held in this case: “the officers violated the Fourth

Amendment by searching the shack without a

warrant” and that conduct “proximately caused the

plaintiffs’ injuries.” App. 22a.

Other circuits agree. In Pauly v. White, 814

F.3d 1060, 1072 (10th Cir. 2016), the Tenth Circuit

specifically addressed “pre-seizure conduct and

proximate cause” and concluded — like the Third

Circuit in Bodine and the Ninth Circuit below —

that “Officers Mariscal] and Truesdale may be held

liable if their conduct immediately preceding the

shooting was the but-for cause of Samuel Pauly’s

death, and if Samuel Pauly’s act of pointing a gun

at the officers was not an intervening act that

superseded the officers’ liability.” In Attocknie v.

Smith, 798 F.3d 1252 (10th Cir. 2015), cert. denied,

136 S. Ct. 2008 (2016), the court likewise held that

“because a reasonable jury could determine that

the unlawful entry was the proximate cause of the

fatal shooting of Aaron, we need not decide whether

Cherry used excessive force when he confronted

Aaron.” /d. at 1258 (internal citation omitted).

Other courts have likewise held that § 1983 claims

are governed by basic principles of tort law,

including proximate cause.” Indeed, Respondents

2 See, e.g., Raub v. Campbell, 785 F 3d 876, 881 n.6 (4th Cir.)

(“Section 1983 imposes liability not only for conduct that

directly violates a right but for conduct that is the effective

cause of another's direct infliction of the constitutional

injury”) (internal quotation marks omitted), cert. denied, 136

(continued . . .)

14

are not aware of — and Petitioners have not cited —

a § 1983 case that rejects those legal principles,

which, as noted above, apply in all cases alleging

constitutional torts.

Rather than focus on the independent Fourth

Amendment violation at issue and the Ninth

Circuit's proximate cause analysis, Petitioners

raise a wholly distinct issue: the “segmented

( .. continued)

S. Ct. 503 (2015); Drumgold v. Callahan, 707 F.3d 28, 48 (ist

Cir. 2013) (‘As a general rule, we employ common law tort

principles when conducting inquimes into causation under

§ 1983.” (internal quotation marks omitted)); Hayden v.

Nevada Cty., AR, 664 F.3d 770, 773 (8th Cir. 2012) (plaintiff

“must present evidence from which a reasonable jury could

conclude that [Mormon's] statements were the proximate

cause of the violation of his constitutional right”); Burns v. PA

Dep't of Corr., 642 F.3d 163, 181 (3d Cir. 2011) (“the plaintiff

in a § 1983 case must prove that a constitutional violation has

occurred, and that it was the proximate cause of his or her

injuries”); Powers v. Hamilton Cty. Pub. Def Comm'n, 501

F.3d 592, 608 (6th Cir. 2007) (“Traditional tort concepts of

causation inform the causation inquiry on a § 1983 claim.”);

Herzog v. Vill. of Winnetka, 309 F.3d 1041, 1044 (7th Cir.

2002) (ordinary rules of tort causation apply to constitutional

tort suits”); Jackson v. Sauls, 206 F.3d 1156, 1168 (11th Cir.

2000) (Ҥ 1983 defendants are, as in common law tort suits,

responsible for the natural and foreseeable consequences of

their actions”); Singer v. Fulton Cty. Sheriff. 63 F.3d 110, 116

(2d Cir. 1995) (‘award of damages must always be designed to

compensate injuries caused by the [constitutional]

deprivation”) (emphasis and alteration in original, internal

quotation marks omitted); Whirl v. Kern, 407 F.2d 781, 789

(5th Cir. 1968) (§ 1983 “should be read against the

background of tort liability that makes a man responsible for

the natural consequences of his actions”).

15

approach” to excessive force claims. As Petitioners

note, some courts have held that excessive force

claims should be viewed in “segments” and that

courts should disregard earlier segments when

determining whether an officer used excessive force

in a later segment (Pet. 18-22) while other courts

have held that “[t]he reasonableness of [an officer's]

actions depends both on whether the officers were

in danger at the precise moment that they used

force and on whether [the officer's] own reckless or

deliberate conduct during the seizure unreasonably

created the need to use such force.” Tenorio v.

Pitzer, 802 F.3d 1160, 1164 (10th Cir. 2015)

(internal quotation marks omitted), cert. denied,

136 S. Ct. 1657 (2016). Courts have emphasized

that this latter approach “is most consistent with

the Supreme Court’s mandate that we consider

these cases in the ‘totality of the circumstances.”

Young v. City of Providence ex rel. Napolitano, 404

F.3d 4, 22 (1st Cir. 2005) (quoting Garner, 471 U.S.

at 8-9). Numerous other courts have adopted this

approach.®

3 See. e.g. Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir.

2001) (“[t}his approach is simply a specific application «“ the

‘totality of the circumstances’ approach inherent in the

Fourth Amendment's reasonableness standard,” quoting

Garner, 471 U.S. at 8-9); Ribbey v. Cox, 222 F.3d 1040, 1043

(8th Cir. 2000) (finding fact issues regarding an excessive

force claim based on evidence that the officer caused the

conduct (the suspect “turnled] reflexively down and away

from the breaking window” and thereby appeared to be

“reaching for a weapon”) that arguably permitted the use of

deadly foree); Estate of Starks v. Envart, 5 F.3d 230, 234 (7th

Cir. 1993) (officer cannot lawfully use deadly force to protect

(continued . . .)

16

Respondents recognize, of course, that the

Court stated in Sheehan that “(t]he Ninth Circuit's

‘provocation’ rule ... has been sharply questioned

elsewhere.” 135 S. Ct. at 1776 n.4 (citing Hector v.

Watt, 235 F.3d 154 (3d Cir. 2000), and Livermore v.

Lubelan, 476 F.3d 397 (6th Cir. 2007)). But the

cases cited in Sheehan do not undermine the Ninth

Circuit’s analysis here. Starting with Hector, the

court there did not cite A/exander nor did it discuss

the Ninth Circuit’s provocation analysis. The

opinion also predates Sillington, which “placed

important limitations on Alexander.” 292 F.3d at

1188. Substantively, the court in Hector followed

Bodine (discussed supra at 12-13) and similarly

held that § 1983 actions for Fourth Amendment

violations are governed by basic principles of

proximate causation, including “the concept of

intervening causes.” 235 F.3d at 160. The Ninth

Circuit, as noted supra at 10-11, correctly

recognized and applied those legal principles.

In Livermore, in contrast, the Sixth Circuit

expressly questioned the Ninth Circuit’s analysis in

Billington (476 F.3d at 406), but whether there is a

conflict between the two circuits is not clear. In

Livermore, the court held that “[tlhe proper

approach under Sixth Circuit precedent is to view

(.. . continued)

himself if he “unreasonably created the encounter that

ostensibly permitted the use of deadly force”); Sigley v. City of

Parma Heights, 437 F.3d 527, 534-35 (6th Cir. 2006) (citing

Starks with approval and recognizing, as in Starks, that

“determining whether the officer placed himself in danger is a

factual inquiry that should be resolved by the factfinder”).

17

excessive force claims in segments” and “disregard”

events in earlier segments when determining

whether an officer used excessive force in a later

segment. /d. at 406-07. But the Sixth Circuit

subsequently held in Kirby v. Duva, 530 F.3d 475,

482 (6th Cir. 2008), that “[wlhere a police officer

unreasonably places himself in harm’s way, his use

of deadly force may be deemed excessive.” That is

the more recent and better reasoned approach, and

numerous courts have similarly so held. See supra

at 15-716 & n.3. Over time, the Circuits can be

expected to reach consensus on that point, and the

Court should allow that process to continue.

In the meantime, this case does not require

the Court to choose between a “segmented”

approach, on the one hand, and a “totality of the

circumstances” approach, on the other, because the

Ninth Circuit did not find lability on an excessive

force claim. App. 22a. As a result, the Ninth

Circuit never addressed whether it is appropriate

or inappropriate to consider events in earlier

segments when determining whether Conley and

Pederson used excessive force after they entered

Respondents’ residence. The dispositive issue in

this case was not whether Respondents should

prevail on an excessive force claim, but rather what

damages were proximately caused by the deputies’

illegal entry into Respondents’ residence. The only

case cited by Petitioners that addresses that issue

is Pauly (Pet 29-30), which provides strong support

for the Ninth Circuit’s causation analysis. See

supra at 13 and infra at 21. The other cases cited

by Petitioners did not address that issue, nor did

they abandon basic principles of tort law in

18

determining what damages are proximately caused

by an officer’s independent Fourth Amendment

violation. The Ninth Circuit properly applied those

legal principles, and its ruling does not conflict with

decisions of other circuits.

D. Contrary to Petitioners’ Argument, The

Ninth Circuit’s Provocation Analysis — As

Applied In This Case — Protects Both

Police Officers And Innocent Individuals

Like Respondents.

Petitioners conclude their discussion of the

Ninth Circuit’s provocation analysis by claiming

that the analysis “puts the lives of officers at risk.”

Pet. 23. But in so arguing, Petitioners continue to

misapprehend the Ninth Circuit’s analysis in this

case. As the Ninth Circuit explained, the

independent Fourth Amendment violation at issue

in this case is the unlawful entry into Respondents’

home. App. 18a (“the deputies violated clearly

established Fourth Amendment law when entering

the wooden shack without a warrant”); App. 22a

(“the officers violated the Fourth Amendment by

searching the shack without a warrant”). [f officers

recognize — as this Court has held — that “the

Fourth Amendment has drawn a firm line at the

entrance to the house” (Steagald, 451 U.S. at 212

(internal quotations marks omitted)), they are far

less likely to enter a home to conduct a warrantless

search (as Petitioners did here).

Such a result protects officers. The Court has

long recognized the constitutional right to use arms

to protect a home. In District of Columbia v.

Heller, 554 U.S. 570 (2008), the Court stated:

19

[T]he inherent right of self-defense has

been central to the Second Amendment

right. The handgun ban amounts to a

prohibition of an entire class of “arms”

that is overwhelmingly chosen by

American society for that lawful purpose.

The prohibition extends, moreover, to the

home, where the need for defense of self

family, and property is most acute.

Jd. at 628 (emphasis added). The Ninth Circuit

below recognized this risk as well (App. 24a-25a),

as did the Tenth Circuit in Pauly (814 F.3d at 1072-

73). Far from putting the lives of officers at risk,

the Ninth Circuit’s analysis protects police officers

from the consequences of rushing into a person’s

home without a warrant, without exigent

circumstances, and without probable cause — as

happened here.

Finally, enforcement of Fourth Amendment

rights also respects the search warrant process, the

purpose of which “is to allow a neutral judicial

officer to assess whether the police have probable

cause to ... conduct a search.” Steagald, 451 U.S.

at 212. This important constitutional checkpoint

acknowledges that officers are “engaged in the

often competitive process of ferreting out crime”

and “may lack sufficient objectivity to weigh

correctly the strength of the evidence supporting

the contemplated action against the individual's

interests in protecting his own liberty and the

privacy of his home.” /d This, too, is a strong

reason to deny the Petition.

20

ll. THE NINTH CIRCUIT CORRECTLY

CONCLUDED THAT RESPONDENTS CAN

ALSO RECOVER DAMAGES UNDER

“BASIC NOTIONS OF PROXIMATE CAUSE.”

In addition to finding liability under the

provocation doctrine, the Ninth Circuit below held

that “even without relying on our Circuit's

provocation theory, the deputies are liable for the

shooting under basic notions of proximate cause.”

App. 24a. Petitioners argue that this holding is

legally incorrect and raises “a substantial issue for

this Court to answer.” Pet. 33-34.

The cases cited by Petitioners (Pet. 34-35) do

not support their argument. As noted previously,

the Third Circuit in Bodine recognized that

unlawful entry claims, like other § 1983 claims for

violations of constitutional rights, are governed by

“basic principles of tort law.” 72 F.3d at 400; see

also supra at 12-13. As a result, the plaintiff must

establish that the officers’ unlawful conduct

proximately caused harm and the officers “would

not be liable for harm produced by a superseding

cause.” 72 F.3d at 400 (internal quotation marks

omitted). These are intensely factual issues, which

is why the Third Circuit in Bodine remanded the

matter for a new trial and did not decide the

proximate cause and superseding cause issues as a

matter of law. /d. at 401. The Third Circuit did

not, as Petitioners urge here, find superseding

cause as a matter of law. Indeed, such a holding

would allow police officers to unlawfully enter a

home, shoot a _ resident who understandably

responds in a “threatening” manner, and then

21

avoid liability in al/ cases based on superseding

cause principles. Such a rule would undermine

“the very core of the Fourth Amendment,” which is

the right to “retreat into [one’s] own home and

there be free from unreasonable governmental

intrusion.” Payton v. New York, 445 U.S. 573, 589-

90 (1980) (alterations and citation omitted).

The other cases cited by Petitioners confirm

that this issue turns on the facts of each case. In

Kane v. Lewis, 604 Fed. Appx. 229, 237 (4th Cir.

2015), the victim of the police shooting knew that

the men who entered the apartment were police

officers “yet advanced toward them with a knife.”

In James v. Chavez, 511 Fed. Appx. 742, 750 (10th

Cir. 2013), the victim of the police shooting knew

that police were at his door and yet deliberately

attempted “to stab a police officer.” In Lamont v.

New Jersey, 637 F.3d 177, 186 (3d Cir. 2011), the

victim was both “noncompliant” and “threatening.”

In Estate of Sowards v. City of Trenton, 125 Fed.

Appx. 31, 41 (6th Cir. 2005), the victim knew that

police officers were kicking down his door and yet

threatened the officers with a handgun when they

gained access. In Pauly, in contrast, the court

found fact issues regarding the superseding cause

analysis because it was unclear whether the

officers properly identified themselves and whether

the victims of the police shooting believed the

officers were intruders rather than state police.

814 F.3d at 1074. The rule that emerges from

these cases is that knowingly and intentionally

22

attacking a police officer can be an intervening act

that supersedes the liability of the officer.*

Here, in contrast, there is no evidence to

support such a defense. Petitioners, for their part,

“violated the Fourth Amendment by searching the

shack without a warrant” (App. 22a), and they do

not argue otherwise. The record also establishes

that they “did not knock and announce their

presence at the _ shack.” App. 66a 498.

Respondents, in turn, did not knowingly or

deliberately attack the officers, and Petitioners

again make no such argument. Instead, as the

district court found, Mr. Mendez “thought it was

Ms. Hughes” opening the door and “picked up the

BB gun rifle to put it on the floor” so that he could

sit up. App. 68a 94 118-19. This conduct — along

‘ Petitioners also cite Hector (Pet. 35), but the plaintiff in that

case alleged an unlawful search and seizure claim and not an

unlawful entry claim, the court noted that the police officers

“are not alleging that any of Hector’s conduct counts as an

intervening cause,” and the court ultimately declined to reach

the intervening cause issue. 235 F.3d at 160-61.

> Petitioners claim that they “bear no responsibility for failing

to identify themselves before opening the door to the shed”

because the Ninth Circuit concluded that they are entitled to

qualified immunity on the knock and announce claim. Pet.

30. Here again, Petitioners misapprehend the Ninth Circuit's

ruling: the failure to knock and announce is not a separate

basis for liability but rather one of the facts and

circumstances that properly informs the lower courts’

proximate cause analysis. App. 25a (“the situation in this

case, where Mendez was holding a gun when the officers

barged into the shack unannounced, was _ reasonably

foreseeable” (emphasis added)).

23

with the shooting itself — was a direct consequence

of Petitioners’ unlawful actions, and the Ninth

Cirewt correctly concluded that they are

responsible for the resulting harm to Respondents

under basic notions of proximate cause. App. 24a.

fl. THE NINTH CIRCUITS QUALIFIED

IMMUNITY RULING ALSO DOES NOT

WARRANT REVIEW.

Petitioners also attack the Ninth Circuit's

qualified immunity analysis. Pet. 23-33. In

deciding this issue, courts engage in a two-pronged

inquiry. Under the first prong, courts must

examine whether the facts “[tlaken in the light

most favorable to the party asserting the injury ...

show the officer’s conduct violated a [federal] right.”

Saucier v. Katz, 533 U.S. 194, 201 (2001). Under

the second prong, courts ask whether the right at

issue was “clearly established” at the time of the

alleged misconduct. Hope v. Pelzer, 536 U.S. 730,

739 (2002). The Court recently emphasized that, in

deciding both prongs, all inferences must be drawn

in favor of the non-moving party. Tolan v. Cotton,

134 S. Ct. 1861, 1866 (2014) (per curiam) (“Our

qualified-immunity cases illustrate the importance

of drawing inferences in favor of the nonmovant,

even when, as here, a court decides only the clearly-

established prong of the standard.”).

Both prongs are satisfied here. As to the first

prong, the Ninth Circuit recognized that the search

took place “one hour” after O’Dell had last been

seen, there was “no immediate or continuous

pursuit of the subject,” and “the deputies lacked

any credible information that [O’Dell] was in

24

Plaintiffs’ shack.” App. 13a-14a (internal quotation

marks omitted). On this record, the Ninth Circuit

correctly concluded that the deputies’ conduct was

contrary to Steagald (451 U.S. at 211-12), Welsh

(466 U.S. at 753), and Johnson (256 F.3d at 908).

See supra at 9 (discussing Ninth Circuit’s analysis

and supporting case law). As to the second prong of

the qualified immunity analysis, this Court decided

Steagald in 1981 and Welsh in 1984, and the Ninth

Circuit decided Johnson in 2001. The right at issue

was therefore clearly established, at the

appropriate level of specificity, at the time of the

officers’ misconduct.

Petitioners’ qualified immunity argument is

misdirected at best. They claim, for example, that

the Ninth Circuit failed to analyze whether the

officers should have expected that their conduct

was likely to provoke a violent response. Pet. 27.

But that is not the constitutional violation at issue

(the first prong of the qualified immunity analysis).

Instead, the constitutional violation at issue, as

noted previously, is searching Respondents’

residence without a warrant in the absence of

exigent circumstances, which is contrary to this

Court’s opinions in Steaga/d and Welsh and the

Ninth Circuit’s opinion in Johnson. App. 24a

(discussed supra at 9). The Ninth Circuit’s

provocation analysis, as limited by Allington,

merely provides a familiar framework for

determining liability where, as here, a plaintiff

alleges a constitutional tort: (1) did the defendant

violate the plaintiffs constitutional rights and

(2) what harms were proximately caused by that

violation? See supra at 6. That analytical

25

framework is not the proper focus of either prong of

the qualified immunity test.

Other Circuits have similarly focused on the

constitutional violation that allegedly caused harm.

In Sledd v. Lindsay, 102 F.3d 282, 288 (7th Cir.

1996), for example, the Seventh Circuit held:

Viewed in the light most favorable to

Sledd, the evidence shows that Bakey’s

act of shooting Sledd at the top of the

stairs was unjustified, even assuming

that the police still had some right of self

defense after they had broken into the

house and failed to identify themselves or

to announce their purpose. In short,

Sledd’s evidence shows that the police

officers behaved in an _ objectively

unreasonable fashion and were therefore

not entitled to qualified immunity.

And in Yates v. City of Cleveland, 941 F.2d 444,

447 \6th Cir. 1991), the Sixth Circuit likewise held:

It was not ‘objectively reasonable’ for

Currie to enter the dark hallway at 2:45

a.m. without identifying himself as a

police officer, without shining a

flashlight, and without wearing his hat.

Thus, because the right Officer Currie is

alleged to have violated was clearly

established, and because Officer Currie’s

actions preceding the shooting were not

those of an objectively reasonable police

officer, we conclude that qualified

immunity is not appropriate.

26

Here too, the Ninth Circuit below correctly focused

on whether “the deputies violated’ clearly

established Fourth Amendment law when entering

the wooden shack without a warrant.” App. 18a.

But even if it were necessary to consider the

provocation issue for purposes of qualified

immunity, those legal principles are also clearly

established. Since at least 2002 — when the Ninth

Circuit decided Billington — it has been clearly

established in the Ninth Circuit that if a plaintiff

can establish an independent Fourth Amendment

violation then “liability is established, and the

question becomes the scope of liability, or what

harms the constitutional violation proximately

caused.” Billington, 292 F.3d at 1190.6 Rejecting a

similar qualified immunity argument in Pauly, the

Tenth Circuit squarely held that “it has been

clearly established since 2006 that for an officer to

be liable under Section 1983, the officer’s conduct

must be both a but-for and proximate cause of the

plaintiffs constitutional harm.” 814 F.3d at 1075-

76. Likewise, it has been clearly established since

at least 1986 — when this Court decided Malley —

6 Petitioners also argue that Allington requires a “violent

response” whereas Mr. Mendez did not respond violently.

Pet. 31. In Billington, the Ninth Circuit used the phrase

“violent confrontation,” not “violent response.” 292 F.3d at

1189. In addition, as the Ninth Circuit below explained,

Petitioners’ argument on this point is “unpersuasive” because

it would mean that victims of police violence are entitled to

damages under the provocation doctrine if they point a

weapon at police and shout “I'll kill you,” but “would be out of

luck” if they were merely “holding a BB gun and didn’t intend

to threaten the police.” App 23a. That makes no sense.

27

that § 1983 “should be read against the background

of tort liability that makes a man responsible for

the natural consequences of his actions.” Malley,

475 U.S. at 344 n.7. Lower courts uniformly agree

that § 1983 claims are governed by basic principles

of tort law, including proximate cause. See supra

at 13-14 n.2. Whether analyzed under the Ninth

Circuit’s provocation rubric or basic notions of

proximate cause — the Ninth Circuit below did both

the controlling legal principles have been clearly

established for decades.

Petitioners next claim that “[a] reasonable

officer would not expect to find residents living in a

dilapidated shed, which appeared uninhabitable.”

Pet. 27. Putting aside the fact that this argument

ignores the rights and circumstances of

impoverished individuals, the district court

expressly rejected this argument based on the

evidence at trial:

Having listened to the testimony and

examined numerous photographs of the

Hughes property, the Court finds that

this perception of Deputies Conley and

Pederson was not reasonable. They had

been told that the shack was inhabited.

The shack was a different structure than

the [storage] sheds. The shack was in a

different location. The following were all

indicia of habitation: The air conditioner,

electric cord, water hose, and clothes

locker.

App. 67a 4 106 (emphasis added); see also App.

60a-62a 99 39-57 (describing shed). The district

28

court’s findings are reviewed for “clear error” (see

supra at 11), and Petitioners have not even

attempted to establish such error. Nor can they.

The same evidence, along with the evidence

and findings set forth on page 11 above, also

refutes Petitioners’ argument that they could not

have reasonably anticipated that entering such a

structure would provoke a violent confrontation

and that what happened here was merely “an

unfortunate coincidence.” Pet. 32. Based on the

information available to Petitioners before they

illegally entered Respondents’ home, the district

court found that a reasonable officer would have

known that a_ violent’ confrontation was

“foreseeable.” App. 126a-127a. The Ninth Circuit

likewise concluded that “the situation in this case,

where Mendez was holding a gun when the officers

barged into the shack unannounced, was

reasonably foreseeable.” App. 25a. That, too, is an

intensely factual issue and does not remotely

warrant this Court’s review.

IV. THIS CASE IS A POOR VEHICLE FOR

REVIEWING THE CLAIMED CAUSATION

ISSUES.

Even if Petitioners could establish that the

Ninth Circuit has adopted a proximate cause

analysis that conflicts with the decisions of other

circuits or with the decisions of this Court (which

they cannot), the Petition should be denied because

this case is a poor vehicle for reviewing the claimed

causation issues. That is so for at least the

following reasons:

29

1. Rather than presenting a clear legal issue

for the Court’s consideration, Petitioners are

rearguing their version of the facts. Petitioners do

not take issue (nor can they) with the Ninth

Circuit's ruling that “[blecause this case involves

the deputies’ renewed assertion of qualified

immunity after judgment, we recite the following

facts in the hght most favorable to the nonmoving

parties and the factfinder’s verdict” (App. 3a), yet

they repeatedly present the facts in the light most

favorable to their own arguments. They claim, for

example, that they did not expect to find residents

living in the shack, yet they were told beforehand

that “a male named Angel (Mendez) lived in the

backyard of the Hughes residence with a pregnant

lady (Mrs. Mendez)” and the shack had an air

conditioner, electric cord, water hose, and clothes

locker. App. 59a 4 25; App. 67a § 106. They also

claim that the confrontation with Respondents was

not foreseeable, but the district court — following a

bench trial — found that it was. App. 126a-127a.

Petitioners assert numerous other “facts” that are

not only contrary to the district court record but are

material to the formulation and resolution of the

Questions Presented in their Petition. Such factual

disputes do not warrant this Court’s review.

2. The Ninth Circuit’s analysis is manifestly

correct and does not rely solely on the court’s

provocation doctrine. As noted previously, the

Ninth Circuit squarely held that Petitioners

“violated the Fourth Amendment by searching the

shack without a warrant” (App. 22a), and

Petitioners do not argue otherwise. Instead, the

central issue in the case is whether Petitioners’

30

conduct proximately caused Respondents’ injuries,

and there is ample evidence supporting the district

court’s ruling that “the conduct of Deputies Conley

and Pederson was the proximate cause of Mr. and

Mrs. Mendez’s injuries.” App. 126a-127a. Not only

is that an intensely factual issue, reviewed solely

for clear error, the Ninth Circuit expressly held

that “even without relying on our Circuit's

provocation theory, the deputies are liable for the

shooting under basic notions of proximate cause.”

App. 24a. Because the provocation doctrine is not

outcome determinative here, the Court should

decline review.

3. Far from putting the “lives of officers at

risk” (Pet. 23), Petitioners’ arguments — if accepted

by this Court — would seriously threaten officer

safety. See supra at 18-19. The Eighth Circuit

squarely rejected a_ similar “officer safety”

argument as follows: “Counsel may shout ‘officer

safety’ until blue-in-the-face, but the Fourth

Amendment does not tolerate, nor has the Supreme

Court or this Court ever condoned, pat-down

searches without some specific and articulable facts

to warrant a reasonable officer in the belief that the

person detained was armed and dangerous.” E£/-

Ghazzawy v. Berthiaume, 636 F.3d 452, 460 (8th

Cir. 2011) (internal quotation marks and citation

omitted). In Yates, the Sixth Circuit similarly held

that “[aln officer who intentionally enters a dark

hallway in the entrance of a private residence in

the middle of the night, and fails to give any

indication of his identity, is more than merely

negligei...” 941 F.2d at 447. The same reasoning

applies where, as here, police officers search a

31

home without a warrant, without exigent

circumstances, and without identifying themselves

as police officers. And these considerations are no

less important when victims of a police shooting

hve in circumstances that others might consider

“uninhabitable.” Pet. 27.

4. The equities in this case overwhelmingly

favor the district court’s hability determination and

damages award. The Ninth Circuit expressly found

that whether the officers were “plainly

incompetent” was “quite debatable.” App. 10a.

Respondents, in contrast, had not committed a

crime and were not suspected of doing so. They

were simply lying on a futon in the wooden shack in

which they resided. App. 56a 4 2. Yet as a direct

result of Petitioners’ unlawful conduct, Mr. Mendez

was shot numerous times, his right leg was

amputated below the knee, and Mrs. Mendez

(pregnant at the time) was shot in the back.

Respondents’ damages are substantial: they

include over $816,000 for past medical bills and

over $500,000 for future medical care for both Mr.

and Mrs. Mendez and prosthesis upkeep and

replacement for Mr. Mendez. App. 53a-54a. The

result in this case is fair and just and, absent

further review, will appropriately deter similar

violations of Fourth Amendment rights. See

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S.

299, 310 (1986) (“Section 1983 presupposes that

damages that compensate for actual harm

ordinarily suffice to deter constitutional

violations.”). For this reason too, the Ninth

Circuit’s analysis does not warrant this Court’s

review.

32

CONCLUSION

For the foregoing reasons, the Petition For A

Writ Of Certiorari should be denied.

OCTOBER 24, 2016

Respectfully submitted,

LEONARD J, FELDMAN

Counsel of Recorel

TOMAS A. GAHAN

PETERSON WAMPOI.D ROSATO LUNA

lwoPP

J501 ITHAVENUE, SUITE 2800

SEATTLE, WA 98101

(206) 644-6800

feledinan@pwrik.com

Counsel for Respondents