Nahmod Law

Proximate Cause and Section 1983 Damages: The Exclusionary Rule’s Attenuation Doctrine and Relating Remedy to Violation

I previously blogged about section 1983 damages actions, proximate cause and the Supreme Court’s decision in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017). That post and important background can be found here : https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/

This post continues that discussion of proximate cause and section 1983 damages actions but expands it to include the attenuation doctrine for the exclusionary rule as well as the general principle in equity cases that the scope of the constitutional violation determines the scope of the equitable remedy.

County of Los Angeles v. Mendez

Recall that in Mendez, the Court remanded to the Ninth Circuit to determine whether the warrantless entry into the plaintiff’s residence without exigent circumstances–a violation of the Fourth Amendment–was the proximate cause of the reasonable shooting of the plaintiff by police officers when he picked up his BB gun as they entered.

At issue in Mendez will be the proximate cause approach on remand: is it the reasonable foreseeability approach, the scope of the risk approach or some combination? A reasonable forseeability approach is potentially broader, more pro-plaintiff and means the the proximate cause issue is left to the jury where reasonable persons can differ. A scope of the risk approach is potentially narrower and more pro-defendant. It gives the court a bigger role because it implicates the legal question of the purposes of the Fourth Amendment’s warrant requirement–the protection of the home and privacy–and whether what happened to the plaintiff was within the scope of those purposes.

The Exclusionary Rule and the Attenuation Doctrine

A comparable proximate cause issue arises in connection with the Fourth Amendment’s exclusionary rule and the fruit of the poisonous tree. Here, the question is whether the link between the unconstitutional conduct and the discovery of the evidence is too attenuated to justify suppression. If it is too attenuated, suppression will not promote deterrence and therefore the evidence should be admitted. See Utah v. Streiff, 136 S. Ct. 2056 (2016).

Note that the proximate cause focus in the exclusionary rule setting is deterrence while in the section 1983 setting it is both compensation and deterrence. Interestingly, in Streiff, where the Court admitted the evidence, Justice Kagan dissented, arguing that the correct attenuation doctrine/proximate cause approach there was reasonable foreseeability and that the evidence should therefore not have been admitted.

The Broader Question: Relation Between Constitutional Violation and Remedy

As I see it, these kinds of proximate cause issues are part of a broader question: the relation between the scope of the constitutional violation and the scope of the judicial remedy.  In the famous school desegregation case, Swann v. Charlotte-Mecklenburg School District, 402 U.S. 1 (1971), the Court set out the general equitable rule for judicial desegregation decrees: the scope of the equal protection violation–de jure segregation encompassing every aspect of school operations–permitted district courts to issue similarly broad remedial decrees so as to eliminate every vestige of the de jure segregation.

These proximate cause/attenuation doctrine issues in the section 1983 and exclusionary rule situations therefore implicate attempts to make the remedy coextensive with the constitutional violation. But the proximate cause/attenuation rules are not identical in the two situations, according to a majority of the Supreme Court, because the policy considerations are different.

I personally would reason in a pro-plaintiff and a pro-criminal defendant way in both situations, with the result that the reasonable foreseeability approach should govern. At the very least, it should govern in the section 1983 damages situation because both compensation and deterrence are critical purposes of section 1983 liability.

Thus, I would apply the reasonable foreseeability approach in Mendez on remand.

 

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Written by snahmod

October 30, 2017 at 9:58 am

Freedom of Speech (6): Fighting Words

This post answers three questions.

1. What are fighting words?

2. Are fighting words protected by the First Amendment?

3. If not, why not?

What are fighting words?

It is fair to say that the category of fighting words has been significantly limited in the years since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the seminal fighting words case discussed below. As I read the subsequent cases, fighting words are in-your-face insults that can be based on race, ethnic origin, religion or sex but don’t necessarily have to be. For example, going right up to someone and yelling a profane insult about that person’s mother may constitute fighting words. But carrying a banner across the street from that person with the same message does not constitute fighting words that can be punished.

Fighting words are not protected by the First Amendment

The Supreme Court explained it this way in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and the obscene, the profane, the libelous, and the insulting or “fighting” words–those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. … [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Why are fighting words not protected?

The Court’s answer in Chaplinsky is several-fold.

First, there is an historical basis, according to the Court, namely, that it has never been thought otherwise. But this is not entirely satisfactory because the Court also lists the lewd and the profane, both of which (so long as not obscene) are now protected by the First Amendment. In addition, the Court lists the libelous, but this category has now been significantly limited by New York Times v. Sullivan, 376 U.S. 254 (1964), which constitutionalized defamation as it affects not only public officials and public figures but also private persons where the speech is on an issue of public concern.

Second, the Court suggests that fighting words tend to incite an immediate breach of the peace, a justification reminiscent of the clear and present danger test of Holmes and Brandeis. But this too is not a satisfactory explanation: where fighting words are present, there is no inquiry into whether in fact there is a clear and present danger. Perhaps the answer is that one’s violent reaction to fighting words is immediate and instinctive; there is no time for counterspeech. [Note, though, that one who responds violently to fighting words is not immune from criminal punishment for his conduct]

Third, the Court engages in what has been called categorical balancing. Namely, it balances the free speech interest in, say, fighting words, against the social interest in order and morality, and finds that as a general matter, the latter trumps the free speech interest. Interestingly, the Court thereby engages in content discrimination which is otherwise not permitted to governments acting in a regulatory role. Moreover, categorical balancing appears inconsistent with the marketplace of ideas rationale.

The exclusion of fighting words and the other categories from First Amendment protection (or coverage) reflects what has been called the “two-tier theory” of the First Amendment, a theory that is based on the content of speech.

 

(For much more on the First Amendment search “free speech” on this blog)

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September 11, 2017 at 1:31 pm

The Supreme Court Comments on the Intracorporate Conspiracy Doctrine and Indirectly on Section 1983

I blogged about the intracorporate conspiracy doctrine and its relation to section 1983 on October 8, 2012, and that post should be read here for background: https://nahmodlaw.com/2012/10/08/section-1983-and-the-intracorporate-conspiracy-doctrine/.

More recently, the Supreme Court weighed in on this doctrine in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) which involved § 1985(3) civil conspiracy claims (in addition to much-publicized Bivens claims) alleging unconstitutional prisoner abuse and unconstitutional conditions of confinement created by high-ranking federal officials—executives and wardens—after the 9-11 terrorist attacks. The plaintiffs were of Arab or South Asian descent.

The Supreme Court ruled that the defendants were protected by qualified immunity from the § 1985(3) civil conspiracy claims. It stated: “[R]easonable officials in [defendants’] position would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.” See, on qualified immunity, chapter 8, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2017)(West).

What is important for present purposes is that, in reaching its qualified immunity conclusion, the Court emphasized that the alleged conspiracy was between or among officers in the same branch of the federal government (the Executive), and in the same department (the Department of Justice). The Court then commented that it had not approved of the use of the intracorporate conspiracy doctrine in the § 1985(3) setting. In addition, the circuits were divided on this issue.

For these reasons, the defendants were protected by qualified immunity: “When the courts of appeals are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”

In light of Ziglar, then, it is fair to say that the applicability of the intracorporate conspiracy doctrine in the § 1983 setting is similarly an open question.

 

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August 22, 2017 at 9:39 am

Does the Fourth Amendment’s Exclusionary Rule Apply in Section 1983 Cases? The Circuits Answer No

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court held that the exclusionary rule—-under which evidence obtained by law enforcement officers who engage in searches or seizures in violation of the Fourth Amendment may not ordinarily be used against criminal defendants at trial—-applied to the states. This Fourth Amendment exclusionary rule remains the general rule, although the Court has introduced various exceptions to it. For example, in United States v. Leon, 468 U.S. 897 (1984), the Supreme Court created a good-faith exception to the exclusionary rule in criminal cases where a search warrant is obtained from a neutral magistrate.

Does the Fourth Amendment’s exclusionary rule also apply in section 1983 cases where, say, police officer defendants wish to introduce evidence against plaintiffs and in support of their defense position? In Lingo v. City of Salem, 832 F.3d 953 (9th Cir. 2016), the Ninth Circuit said that it was joining the First, Second, Fifth and Eleventh Circuits in holding that the exclusionary rule does not apply in section 1983 cases.

In Lingo, the plaintiff arrestee sued police officers alleging an unconstitutional arrest without probable cause that arose out of a violation of the Fourth Amendment when the officers entered the curtilage of her home to approach the back door. According to the plaintiff,  that initial unconstitutional entry led to the eventual discovery (through smell) of evidence of marijuana use, the “fruit” of the poisonous tree, and thereafter brought about her unconstitutional arrest. In the state court criminal case, the trial court agreed and suppressed this evidence on Fourth Amendment grounds, with the result that criminal charges were dismissed.

In this section 1983 case, the plaintiff argued that the officers should not be permitted to introduce evidence obtained in violation of the Fourth Amendment to show probable cause to arrest her. Rejecting her argument, the Ninth Circuit held that this evidence, even though obtained in violation of the Fourth Amendment, was indeed admissible.

The Ninth Circuit reasoned that, unlike in criminal cases where the purpose of the exclusionary rule is to remove any incentive for police to violate the Fourth Amendment and incriminate a suspect, the need for deterrence was minimal in section 1983 cases. And even if there were some need for deterrence, the costs of the exclusionary rule to police officers would be excessive. Specifically, the court explained:

[Compared to removing the incentive to violate the Fourth Amendment in criminal cases, in section 1983 cases] the need for deterrence is minimal. Here, application of the exclusionary rule would not prevent the State from using illegally obtained evidence against someone, but instead would prevent state actors merely from defending themselves against a claim for monetary damages. Exclusion of evidence in this context would not remove any preexisting incentive that the government might have to seize evidence unlawfully. It would simply increase state actors’ financial exposure in tort cases that happen to involve illegally seized evidence. In effect, section 1983 plaintiffs would receive a windfall allowing them to prevail on tort claims that might otherwise have been defeated if critical evidence had not been suppressed. Even if such application of the rule might in some way deter violative conduct, that deterrence would impose an extreme cost to law enforcement officers that is not generally countenanced by the doctrine.

The Ninth Circuit concluded:

[N]othing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search. Indeed, as a general matter, probable cause determinations depend on the substance of the information known to the officer, not whether that information would be admissible in court.

Comment

1. The reasoning and result in Lingo come as no surprise. The Supreme Court has not extended the Fourth Amendment’s exclusionary rule beyond criminal trials.

2. Also, as noted above, the four other circuits that have addressed this issue in a section 1983 context all reached the same conclusion.

3. The Ninth Circuit’s cost-benefit analysis in Lingo is worth noting.

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July 18, 2017 at 1:36 pm

County of Los Angeles v. Mendez: Supreme Court Rejects “Provocation Rule,” Remands On Proximate Cause

On May 30, 2017, the Supreme Court handed down a unanimous decision in County of Los Angeles v. Mendez (No. 16-369), vacating and remanding, 815 F.3d 1178 (9th Cir. 2016).

(I blogged about the issues raised by Mendez on May 10, 2017).

As I expected, the Court, in an opinion by Justice Alito (Justice Gorsuch did not participate), rejected the Ninth Circuit’s provocation rule. However, the Court did not decide the alternative proximate cause issue, but instead remanded.

Background

In Mendez, police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engaged in a warrantless entry into plaintiff’s residence (a shack) without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, both actions in violation of the Fourth Amendment. They thereby allegedly provoked the plaintiff resident’s grabbing a gun (it turned out to be a BB gun that resembled a small caliber rifle), which in turn led to their shooting and seriously injuring the plaintiff.

The question was whether the plaintiff had a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force.  The two theories underlying such liability were that the warrantless entry into the shack either (1) provoked the subsequent events within the meaning of the Ninth Circuit’s provocation rule, or (2) proximately caused the use of the deadly force which–even if reasonable when viewed in isolation–was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment. Or was the reasonable use of deadly force an event that broke the chain of causation under the second theory?

In the posture of case when it arrived at the Supreme Court, the Ninth Circuit had determined that even though the officers violated the Fourth Amendment by not knocking and announcing, they were protected by qualified immunity from damages liability for this constitutional violation. This effectively eliminated that particular Fourth Amendment violation–the failure to knock and announce–from serving as the basis of section 1983 liability for the shooting. (See chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016) on qualified immunity).

However, and crucial for present purposes, the Ninth Circuit concluded that the warrantless entry into the shack violated the Fourth Amendment and was not protected by qualified immunity. And even though the shooting was reasonable and not excessive under Graham v. Connor, 490 U.S. 386 (1989), the officers were still liable under the circuit’s provocation rule: they had intentionally and recklessly provoked the shooting by entering the shack without a search warrant in violation of the Fourth Amendment. In the alternative, the Ninth Circuit further reasoned that the officers were liable because they proximately caused the shooting of the plaintiff.

The Opinion in County of Los Angeles v. Mendez

The Court unanimously reversed. It rejected the Ninth Circuit’s provocation rule: “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” It emphasized that Graham v. Connor was the settled and exclusive framework for determining whether force used was excessive. This framework, focusing on the reasonableness of the force used, was objective in nature,  it addressed the facts and circumstances in each particular case and it determined reasonableness from the perspective of a reasonable officer on the scene, rather than with hindsight.

According to the Court, the Ninth Circuit’s provocation rule was inconsistent with Graham because it provided a “novel and unsupported path to liability” where the use of force was reasonable. The rule improperly “conflates distinct Fourth Amendment claims.” In so doing, it “permits excessive force claims that cannot succeed on their own terms.”

The Court then went on to reject the plaintiff’s attempts to limit the provocation rule to cases where (1) the separate constitutional violation creates the situation that led to the use of force and (2) the separate constitutional violation is committed intentionally or recklessly. Neither limitation solved the basic problem: the “unwarranted and illogical expansion of Graham.”

The Court concluded its analysis by reaffirming that the officers might conceivably be liable for damages proximately caused by their Fourth Amendment violation, namely, their warrantless entry into plaintiff’s shack. However, the Court emphasized that the proper proximate cause analysis “required consideration of the ‘forseeeability or the scope of the risk created by the predicate conduct,'” and the Ninth Circuit had not used this analysis in its alternative proximate cause ruling. Accordingly, the Court vacated the Ninth Circuit’s judgment and remanded to deal with the proximate cause issue.

Comments

1. The provocation rule was unique to the Ninth Circuit and its rejection in Mendez did not change section 1983 doctrine elsewhere.

2. The oral argument in Mendez focused on causation as well as the provocation rule. Several justices inquired into the proximate cause relationship between the failure to get a search warrant and the resulting (reasonable) use of deadly force. They asked whether the failure to get the search warrant made a difference in the plaintiff’s reaching for his BB gun, which resulted in the use of deadly force. They also asked whether the plaintiff’s reaching for his BB gun–and the officers’ subsequent use of deadly force–was within the scope of the risk created by the officers’ failure to get a search warrant. (This is classic tort law proximate cause talk).

These justices thereby appeared to signal to the lower courts and to the parties (on remand) that they were highly skeptical about the alleged proximate cause link between the failure to obtain a search warrant and the shooting of the plaintiff.

This is in contrast to the plaintiff’s far stronger proximate cause argument with regard to the risk of the plaintiff’s reaching for his BB gun–followed by the officers’ use of deadly force–that was created by the officers’ failure to knock and announce. But this Fourth Amendment violation was removed by the Ninth Circuit from the proximate cause analysis (and potential damages liability) by qualified immunity, as noted above.

3. Mendez did not change the circuits’ (and the Court’s) prevailing approach to proximate cause which focuses on reasonable foreseeability or the scope of the risk created by unconstitutional conduct. The results in individual cases may turn on how broadly or narrowly the scope of the risk created by the constitutional violation is defined. As in tort law, this is a question of policy.

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June 16, 2017 at 9:41 am

Manuel v. City of Joliet: The Court Rules Section 1983 “Malicious Prosecution” Claims Can Be Based on the Fourth Amendment But Otherwise Punts

Background

Recall that the Supreme Court granted certiorari on January 15, 2016, in Manuel v. City of Joliet, 136 S. Ct. 890 (2016), an unreported Seventh Circuit section 1983 malicious prosecution decision.

Manuel, which was argued on October 5, 2016, had the potential to be a blockbuster section 1983 decision that transformed the section 1983 malicious prosecution landscape, especially for section 1983 claims brought for wrongful conviction and incarceration.

In Manuel, the Seventh Circuit affirmed the decision of the district court dismissing the plaintiff’s section 1983 Fourth Amendment claim that police officers maliciously prosecuted him when they falsified the results of drug tests and thereafter arrested him for possession with intent to distribute ecstasy. The district court relied on Newsome v. McCabe, 256  F.3d 747 (7th Cir. 2001), and the Seventh Circuit panel found no compelling reason to reconsider that precedent. The Seventh Circuit explained: “Newsome held that federal claims of malicious prosecution are founded on the right to due process, not the Fourth Amendment, and thus there is no malicious prosecution claim under federal law if, as here, state law provides a similar cause of action.”

This was the Question Presented in Manuel: “Whether an individual’s Fourth Amendment right to be free from unreasonable seizure continues beyond legal process so as to allow a malicious prosecution claim based upon the Fourth Amendment.”

According to the Petition for Writ of Certiorari, the First, Second, Third, Fourth, Fifth, Sixth, Ninth, Tenth, Eleventh and D.C. Circuits had all answered this question in the affirmative, while only the Seventh Circuit had answered in the negative.

Manuel raised two separate but related questions.

1. The first was whether the Fourth Amendment could be used as the basis for a section 1983 malicious prosecution claim, including for the period after so-called legal process began–when a judge determined that probable cause existed to hold the plaintiff.

2. The second, implied by the language of the Question Presented, and addressed by several of the Justices during oral argument, was whether the elements of the tort of malicious prosecution–including favorable termination as well as malice and absence of probable cause–should play any role in section 1983 claims challenging wrongful convictions and incarceration. This question was important under the facts in Manuel itself because, without a favorable termination requirement, the plaintiff’s section 1983 claim would be time-barred under the Illinois two-year statute of limitations even if it could be based on the Fourth Amendment.

The Supreme Court’s Decision: Reversed on the Fourth Amendment But Punting on “Malicious Prosecution”

On March 21, 2017, the Supreme Court reversed the Seventh Circuit’s decision that rejected the applicability of the Fourth Amendment after legal process has begun. In an opinion by Justice Kagan, the Court held that there is indeed a Fourth Amendment right to be free from seizure without probable cause that extends through the pretrial period, even though the seizure is “pursuant to legal process.” Specifically, the seizure occurs both before the onset of legal proceedings, i.e, the arrest, and after the onset of criminal proceedings, i.e., where a judge’s probable cause determination is based solely on a police officer’s false statements, as was allegedly the case in Manuel. The Court’s reasoning was similar to the “continuing seizure” approach of Justice Ginsburg’s concurrence in Albright v. Oliver, 510 U.S. 266 (1994).

However, the Court remanded to the Seventh Circuit on the favorable termination/accrual question after describing the opposing positions on the issue, including the observation that the United States agreed with the plaintiff in Manuel, as did eight of the ten circuits that have favorable termination requirements.

Justice Kagan’s opinion was joined by Chief Justice Roberts and Justices Kennedy, Breyer, Ginsburg and Sotomayor. Justices Thomas and Alito dissented, with Justice Alito, joined by Justice Thomas, arguing both that the Fourth Amendment was not applicable in Manuel and that the plaintiff was not entitled to the benefit of a unique malicious prosecution accrual rule based on a favorable termination requirement.

Comments

The Court’s decision on the Fourth Amendment only changes the law in the Seventh Circuit. However, the Court punted on the broader question whether common law malicious prosecution elements, including favorable termination, should play any role in section 1983 jurisprudence outside of situations covered by Heck v. Humphrey, 512 U.S. 477 (1994), where plaintiffs effectively challenge existing convictions.

These issues–raised, briefed and argued in Manuel– have been a matter of importance to me for some time. In fact, I wrote an amicus curia brief (posted previously) in support of the defendants in Manuel that deliberately did not take a position on the Fourth Amendment issue. Instead, the brief urged the Court to eliminate the confusion caused by the use of malicious prosecution terminology in section 1983 cases. The brief also maintained that the elimination of this terminology would be neutral in its effects on plaintiffs and defendants alike. My treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016)(West), has for years called for the virtual elimination of most of the tort-like terminology used for such purposes and for a renewed focus on the constitutional bases for such claims.

Manuel provided the Court with its first opportunity in the twenty-three years since Albright v. Oliver to consider the elements of such claims. Regrettably, it did not do so in Manuel. Still, the Court will one day have to deal with these issues, including the favorable termination requirement.

When it does, recently confirmed Justice Gorsuch will be involved in the decision. And it is worth noting that then-Judge Gorsuch concurred in the judgment in Cordova v. City of Albuquerque, 816 F.3d 645 (10th Cir. 2016), where he came out against incorporating the common law tort elements of malicious prosecution, including favorable termination, in section 1983 cases.

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May 15, 2017 at 10:05 am

County of Los Angeles v. Mendez (pending): Section 1983, Proximate Cause and the Fourth Amendment

County of Los Angeles v. Mendez, No. 16-369 (argued March 22, 2017)

The Factual Background

Suppose that police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engage in a warrantless entry into a home without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, in violation of the Fourth Amendment. They thereby allegedly “provoke” the plaintiff resident’s grabbing a gun (it turns out to be a BB gun), which in turn leads to their shooting and seriously injuring the plaintiff.

The Proximate Cause Questions

Does the plaintiff have a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force?  The theories underlying such liability are that the warrantless entry into the home either (1) “provoked” the subsequent events or (2)  was the proximate cause of the use of the deadly force which (even if reasonable when viewed in isolation) was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment?

These are the questions raised by Mendez v. County of Los Angeles, 815 F.3d 1178 (9th Cir. 2016), a Ninth Circuit decision that ruled for the resident, and as to which the Supreme Court has granted certiorari.

Specifically, in addition to the propriety of the Ninth Circuit’s questionable “provocation” rule, another aspect of the Question Presented is “whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.”

Comments

There have been other section 1983 proximate cause cases before the Supreme Court, but this one is different because it raises reasonable foreseeability (and superseding cause) as the proximate cause test in a split-second decision making setting. Compare Malley v. Briggs, 475 U.S. 335 (1986), and Martinez v. California, 444 U.S. 277 (1980), both of which are discussed in sections 3:106-107 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016).

There is a critical complication in Mendez, however, that must be noted. The Ninth Circuit ruled in Mendez that the defendants did not violate clearly settled Fourth Amendment law in failing to knock and announce, even though they did violate the Fourth Amendment. That is, the defendants were protected by qualified immunity from damages liability-see Chapter 8 of my treatise–for their failure to knock and announce in violation of the Fourth Amendment, meaning that the proximate cause issue related to knock and announce may well disappear.

This is significant because it may weaken the plaintiff’s proximate cause argument. After all, isn’t the failure to knock and announce closely related in time and space to the plaintiff’s reaching for his BB gun? And isn’t this rather clearly reasonably foreseeable? On the other hand, how closely related in time and space is the defendants’ failure to obtain a search warrant to what happened later? Is this as clearly reasonably foreseeable?

The oral argument in Mendez focused on this issue, with various justices wondering about both the cause in fact and proximate cause relationship between the failure to get a search warrant and the resulting use of (constitutional) deadly force. They asked–cause in fact–whether the failure to get the search warrant made a difference in the plaintiff’s reaching for a gun (albeit a BB gun) that resulted in the use of deadly force. Several also skeptically asked–proximate cause–whether the plaintiff’s reaching for a gun was within the scope of the risk created by the failure to get a search warrant.

I suspect that a majority of the justices will rule for the defendants on this proximate cause issue. But going forward, much will depend on how the proximate cause opinion is written.

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May 10, 2017 at 10:22 am