Nahmod Law

In Peck v. Montoya, 51 F.4^th 877 (9^th Cir. 2022), the five officer defendants responded to a 911 call that decedent was acting erratically and threatening another person with a firearm. Two of those officers in this § 1983 Fourth Amendment excessive force case then shot and killed the decedent.

After affirming the district court’s denial of qualified immunity to the two shooting officers, the Ninth Circuit went on to consider whether the other three officers could also be liable for the killing, and therefore similarly not entitled to qualified immunity, on the ground that they were “integral participants” in the two officers’ use of excessive force.

The court, in an opinion that discussed both cause in fact and proximate cause, rejected the argument that cause in fact involvement is enough to render the three officers “integral participants”: this, without any relation to state of mind, would subject to liability anyone who had a causal relationship with the killing, including the 911 dispatcher and “even the mechanic who fixed [defendants’] cars….”

Instead, there is a kind of proximate cause requirement for integral participation as well: (1) the defendant must know or have acquiesced in the unconstitutional conduct as part of a common plan or (2) the defendant must have set into motion a series of acts by others that the defendant knew or should have known would bring about the constitutional deprivation.

In this case, the evidence was clear that the three officers were not integral participants: the shooting was unplanned and they had no reason to think that their providing of armed backup would enable the later unconstitutional use of force by the two officers. Any other result would not only be inconsistent with the approach rejected by the Supreme Court in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017), but would effectively result in strict liability. “That is not the law.”

But I wonder about the utility of this so-called “integral participant” doctrine and what it adds to the analysis. The result in Peck can be readily justified without recourse to such a doctrine: by simply pointing out that individual liability under § 1983 for a Fourth Amendment violation requires an intent to seize. Here, even though there was a seizure committed by the two shooting officers and proof of a cause in fact connection between the conduct of the three officers and the plaintiff’s Fourth Amendment deprivation, there was apparently no proof of such intent on the part of these three officers. Sometimes less is more.

Recall that I posted on Mendez and proximate cause here: https://nahmodlaw.com/2017/06/16/county-of-los-angeles-v-mendez-supreme-court-rejects-provocation-rule-remands-on-proximate-cause/.

I also discuss Mendez at some length in Chapter 3 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 ed.; West & Westlaw).

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