# Amicus Brief — Cnty. of L. A. v. Mendez, 137 S. Ct. 1240 (2017) (No. 16-369) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0708%3A18 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 2017 ## Text Zn the Supreme Court of the Anited States COUNTY OF LOS ANGELES, CHRISTOPHER CONLEY AND JENNIFER PEDERSON, Petitioners, Vi 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 o 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. 2 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- 3 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. 4 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 5 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 6 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. 7 Respectfully submitted. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0708%3A18. Public record. Not legal advice.