Nahmod Law

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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