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

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Zn the

Supreme Court of the Anited States

COUNTY OF LOS ANGELES, CHRISTOPHER CONLEY

AND JENNIFER PEDERSON,

Petitioners,

ANGEL MENDEZ AND JENNIFER LYNN GARCIA,

Respondents.

—— ———

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

BRIEF OF AMICUS CURIAE THE RUTHERFORD

INSTITUTE IN SUPPORT OF RESPONDENTS

—————

JOHN W. WHITEHEAD ANAND AGNESHWAR

DOUGLAS R. MCKUSICK Counsel of Record

THE RUTHERFORD INSTITUTE ARNOLD & PORTER KAYE

1440 Sachem Place SCHOLER LLP

Charlottesville, VA 22901 399 Park Avenue

(434) 978-3888 New York, NY 10022

(212) 836-8011

anand.agneshwar@aporter.com

Counsel for Amicus Curiae The Rutherford Institute

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIESG....................0.0.0c.0.-00000-0- titi

INTEREST OF AMICUS CURIAE............................ 1

I. Law Enforcement Officers May Be Held

Liable Under Traditional Proximate Cause

Il. The Mendez tragedy was a foreseeable

consequence of avoidable police practices............4

SI Li concsdutidecesintpnnmninbueeneetinnetenensindgioncnnesel 6

TABLE OF AUTHORITIES

Page(s)

CASES

Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995)......5, 6

Carey v. Piphus, 435 U.S. 247, 258 (1978)............. 2,7

Imbler v. Pachtman, 424 U.S. 409 (1976) .................. 2

istrict of Columbia v. Heller, 554 U.S. 570

Malley v. Rion. 475 U. S. 335 (1986)... Re 2

McDonald v. United States, 335 U.S. 451

ER SSRN ne ee 4

Mendez v. County of Los Angeles, 815 F. 3d

1178 (Oth Cir, 2016) o.........cccccccccccccececceeeeeceveeeeeeees 3

Paroline v. United States, 134 S. Ct. 1710

ETE AE 2 3

STATUTES

EER TREE SAR en Fb 22k 2

OTHER AUTHORITIES

Restatement (Third) of Torts: Liability for

Physical and Emotional Harm § 29 (2005)

Restatement (Third) of Torts: Liability for

a and Emotional Harm § 29, p. 493

aE ichecanasieinitdphistibeasianintabaaeaniniaieiieietnanedees

INTEREST OF AMICUS CURIAE!

The Rutherford Institute is a nonprofit civil lib-

erties organization headquartered in Charlottesville,

Virginia. Founded in 1982 by its President, John W.

Whitehead, the Institute specializes in providing pro

bono legal representation to individuals whose civil

liberties are threatened and in educating the public

about constitutional and human rights issues.

As part of its mission, The Rutherford Institute

resists the erosion of fundamental civil liberties that

many would ignore in a desire to increase the power

and authority of law enforcement. The Rutherford

Institute believes that according ever increasing

power and authority to law enforcement only creates

a false sense of security while sacrificing unconscion-

able intrusions upon the private lives of private citi-

zens.

The Rutherford Institute is interested in this

case because it is committed to ensuring the contin-

ued vitality of the Fourth Amendment. Reversal of

the Ninth Circuit’s decision would be tantamount to

holding that law enforcement officials are entirely

immune from their own culpable conduct, even in

circumstances when the victims of that conduct are

acknowledged by all to be without fault.

1 No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary

contribution intended to fund the preparation or submission of

this brief. No one other than amicus curiae, its members, or its

counsel made a monetary contribution to the preparation or

submission of this brief. A letter from Petitioners consenting to

the filing of this amicus brief has been filed with the Clerk of

the Court. Attached is consent from Respondents.

ARGUMENT

I. Law Enforcement Officers May Be Held Liable

Under Traditional Proximate Cause Standards

On the morning of October 1, 2010, the Mendezes

were confronted in their own home by two sheriffs

deputies of the Los Angeles County Police Depart-

ment. But the Mendezes had done no wrong; the po-

licemen had targeted the wrong people. As Mr.

Mendez moved a toy gun he uses to shoot pests, the

sheriffs fired 15 shots, shattering Mr. Mendez’s leg

and striking his pregnant wife in the back.

That the traditional tort law standard of proxi-

mate cause applies to 42 U.S.C. § 1983 claims is, by

now, hardly controversial. This Court has explained

quite simply that a § 1983 plaintiff pursues “a spe-

cies of tort liability.” Imbler v. Pachtman, 424 U.S.

409, 417 (1976); accord, e.g., Carey v. Piphus, 435

U.S. 247, 258 (1978); Malley v. Briggs, 475 U.S. 335,

345 n.7 (1986). Both Petitioners and Respondents

agree on this much.

The Petitioners’ focus on the Ninth Circuit's ap-

plication of its “provocation rule.” But the Court also

explained that “even without relying on ... [the]

provocation theory, the deputies are liable for the

shooting under basic notions of proximate cause.”

Mendez v. County of Los Angeles, 815 F.3d 1178,

1194 (9th Cir. 2016) (emphasis added).

“Proximate cause is often 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) (citing Restatement (Third) of

Torts: Liability for Physical and Emotional Harm

§ 29, p. 493 (2005)). Under that standard, law en-

forcement officials are free from liability only “in sit-

uations where the causal link between [their] con-

duct and result is so attenuated that the consequence

is more aptly described as mere fortuity.” Id. at 1719

(2014).

As Respondents argue, it is hardly unforeseeable

that a person might react violently when an un-

known and unidentified person barges into his home

without saying who he or she is. This Court’s deci-

sion in District of Columbia v. Heller specifically con-

templates “handgun possession in the home ... for

the lawful purpose of self-defense” and emphasized

“the importance of the lawful defense of self, family,

and property” in the home. 554 U.S. 570, 573 (2008).

Decades ago, Justice Jackson explained similarly:

When a woman sees a strange man, in

plain clothes, prying up her bedroom

window and climbing in, her natural

impulse would be to shoot .... But an

officer seeing a gun being drawn on him

might shoot first.

McDonald v. United States, 335 U.S. 451, 460-61, 69

(1948) (Jackson, J., concurring). Accordingly, it is

common sense that if a police officer enters into the

home of a private citizen unannounced, violence may

ensue.

In claiming that the circumstances that led to

the shooting of the Mendezes were not foreseeable,

Petitioners repeat that the Mendez tragedy was a

“tragic happenstance.” Pet’r’s Br. 2, 56. It was cer-

tainly a tragedy. But it was a foreseeable tragedy.

Il. The Mendez tragedy was a foreseeable conse-

quence of avoidable police practices.

These types of situations have occurred before,

which belies Petitioners’ claim that the sequence of

events that led to the Mendezes being shot is unfore-

seeable.

In 2006, Kathryn Johnston, an elderly Georgia

woman who lived in a dangerous neighborhood, as-

sumed her home was under attack by armed in-

vaders when three law enforcement officials entered

her home without identifying themselves as police of-

ficers. In an attempt to defend herself she fired a

shot into the ceiling. Johnson, an octogenarian, end-

ed up being shot and killed by the officers.”

In 2008, Tracy Ingle, a 40-year-old former

stonemason assumed he too was under attack when

he heard the sound of a battering ram at his door.

He pulled out a non-working handgun in an attempt

to scare of the would-be intruders. By the time he

realized the intruders were actually police officers

attempting to execute a search warrant, it was too

late. Ingle was shot above his knee shattering his

thigh.’

Petitioners further claim that Mr. Mendez’s act

of holding a BB gun as the deputies entered his home

was a superseding act that broke the causal chain.

Not so.

2 Patrick Jonsson, After Atlanta Raid Tragedy, New Scrutiny of

Police Tactics, Christian Science Monitor (Nov. 29, 2006),

http://www .camonitor.com/2006/1 129/p03s03-ussc. htm!

3 David Koon, Shot In The Dark, Arkansas Times (April 24,

2008), http://www.arktimes.com/arkansas/shot-in-the-

dark/Content?oid=948430

In Bodine v. Warwick, 72 F.3d 393 (3d Cir. 1995)

(Alito, J.), the court illustrated the type of factual

circumstances that would justify such a conclusion

that the citizen’s conduct was a superseding cause:

Suppose that three police officers go to a

suspect's house to execute an arrest

warrant and that they improperly enter

without knocking and announcing their

presence. Once inside, they encounter

the suspect, identify themselves, show

him the warrant, and tell him that they

are placing him under arrest. The sus-

pect, however, breaks away, shoots and

kills two of the officers, and is preparing

to shoot the third officer when that of-

ficer disarms the suspect and in the pro-

cess injures him. Is the third officer

necessarily liable for the harm caused to

the suspect on the theory that the ille-

gal entry without knocking and an-

nouncing rendered any subsequent use

of force unlawful? The obvious answer is

no.” The suspect’s conduct would con-

stitute a “superseding” cause

Id. at 400 (citations omitted). This factual scenario

is of course predicated on the suspect knowing that

he was confronting the authorities acting, whether

appropriately or not, in their capacity of authorities.

In the absence of facts like these, a private citizen’s

act of defending him or herself can hardly be said to

be a superseding cause.

Petitioners add that the Mendezes injuries were

not in the “scope of risk” that the Fourth Amend-

ment’s proscription against illegal search and seizure

protects. They suggest that the officers may be held

liable for the injuries the Mendezes suffered for the

unlawful search and seizure of their home, but not

the injuries they suffered as a result of the unrea-

sonable use of force. But this Court has already cau-

tioned that common law proximate cause standards

are not to be so rigidly applied that they undermine

the very purpose of § 1983 . See Carey v. Piphus,

435 U.S. 247, 258 (1978) (expressing skepticism “that

common-law tort rules of damages will provide a

complete solution to the damages issue in eve

ry § 1983 case” and explaining that “the purpose of

§ 1983 would be defeated if injuries caused by the

deprivation of constitutional rights went uncompen-

sated simply because the common law does not rec-

ognize an analogous cause of action”). When law en-

forcement officials invade a person’s home prompting

a violent reaction in self-defense, they should not be

able to rest on the fact that they are required to

make split-second decisions in violent encounters.

They cannot claim the benefit of a reasonable mis-

perception while denying it to others.

This case is not about the undeniably difficult

decisions law enforcement officials must make dur-

ing unpredictable encounters with potentially dan-

gerous individuals. This case is about what the of-

ficers can reasonably expect if they barge into a pri-

vate home unannounced.

CONCLUSION

The decision of the United States Court of Ap-

peals for the Ninth Circuit should be affirmed.

Respectfully submitted.