Justice lost in a thicket of doctrine

Simplify, simplify. Thoreau's admonition glistens across the veneer of the U.S. Supreme Court's recent iteration of excessive force doctrine in County of Los Angeles v. Mendez, 2017 DJDAR 4912 (May 30, 2017). It is, regrettably, a thin sheen over several layers of encrusted byzantine complexity.

The underlying facts are that Los Angeles sheriff deputies were looking for a particular parolee at large. A confidential informant told deputies he had been seen riding a bicycle in front of someone's house. Later that afternoon, when that homeowner refused the deputies entry without a valid warrant, the deputies, hearing someone inside, entered through an open door. Not finding the parolee inside, they searched the grounds. They came upon a storage shack with an air conditioner in the window, and a hanging blue blanket for a door. Inside was a homeless couple who had lived there for 10 months, asleep. Without warning, the deputies entered. Mendez reached for the BB gun he used to shoot rats as they would enter the shack. A deputy yelled "gun." Deputies shot 15 rounds, hitting both, resulting in serious injuries, including amputation of Mendez's right leg below the knee. The victims sued the deputies under 42 U.S.C. Section 1983.

Mendez and his wife told the district court the deputies did three things wrong. First, they entered the property without a valid warrant or exception to the warrant requirement. Second, they failed to knock and give adequate notice they were entering. Third, upon entering, they used excessive force.

After a bench trial, the district court agreed regarding the first two of plaintiffs' three Fourth Amendment claims, but awarded only nominal damages because the BB gun constituted a "superseding cause," justifying the deputies acting in self-defense. On the excessive force claim, however, the court ruled that the deputies' fusillade was reasonable because it was, narrowly framed, self-defense. Nonetheless, under the 9th U.S. Circuit Court of Appeals' "provocation doctrine," because the deputies' missteps in creating the circumstances under which they opened fire were both sufficiently provocative and, themselves, unconstitutional, the district court held that the use of force was "unreasonable" as a matter of law. The deputies thus were found responsible for the resulting injuries and the court awarded $4 million in compensatory damage. The 9th Circuit upheld the judgment adding that, even without reference to the provocation doctrine, otherwise controversial among the various federal circuit court of appeals, the deputies' violation of the knock and notice requirement proximately caused plaintiffs' injuries, thereby supporting the award.

The Supreme Court, without necessarily disagreeing with the result, disagreed with the route getting there. The high court's primary criticism is that both trial and appellate courts improperly conflated and confused the three separate constitutional categories. Moreover, the high court concluded that the provocation doctrine did not logically follow from the text of the case in which the Supreme Court laid out the seminal, controlling dogma regarding modern excessive force claims, Graham v. Connor (1989). In short, it found this was not, at least in this stage of the proceeding, an excessive force case.

Next, the high court rejected the 9th Circuit panel's theory that the deputies barging in without knock or notice could be considered the proximate cause of the injury. This is because the trial court had previously ruled the deputies are entitled to qualified immunity on that particular claim. Qualified immunity is a doctrine the Supreme Court previously crafted out of statutory thin air to protect police officers otherwise confused by the complexity of constitutional doctrine. The gist for the uninitiated is: Yeah, the officers violated the Fourth Amendment, but objectively speaking, how could they know what they were doing under the circumstances violated a constitutional right? Consequently, courts reward selective law enforcement officers' ignorance and professional incompetence by handing out passes before a jury gets to hear the matter.

Nonetheless, Justice Samuel Alito's opinion, joined by the seven remaining justices who heard the case, breathed new life into the plaintiff's claim, pointing to the first claim and suggesting that the injuries might have been proximately caused by the deputies' failure to secure a search warrant. Perhaps, then, the BB gun was not, after all, a superseding cause of the injuries, at least with respect to the deputies' failure to secure a warrant. The court remanded for further consideration.

A footnote in the opinion breathes still more life into plaintiffs' chances below. The note adds that respondents (the plaintiffs below) did not attempt to defend the provocation doctrine before the Supreme Court. Instead, plaintiffs contended the district court's verdict should be upheld merely as an example of excessive force under the "totality of circumstances," the analytic framework Graham typically overlays on such claims. This argument implies the district court too narrowly framed the circumstances facing the deputies when it concluded their act of self-defense is reasonable. Certiorari not having been granted on that particular issue, the opinion directs respondent to take it up with the 9th Circuit on remand. Perhaps, then, it still is an excessive force case.

There is much to be said for simplification and carefully drawing categories for purposes of intellectual coherence and clarity. It is an effort that, in these specific interconnected areas of law, largely started with Justice William O. Douglas, in Monroe v. Pape (1961). Therein, the Supreme Court resurrected the Civil Rights Act of 1871, the enabling legislation for suing state actors [ultimately redesignated 42 U.S.C. Section 1983], from doctrinally imposed obscurity and near irrelevance. But given nine quiescent decades, there was little body of law to draw on to instruct lower courts how to handle the case before it, a family seeking vindication against Chicago police for a warrantless raid of their home. The statute, enacted by many of the same congressmen responsible for the post-Civil War amendments, was cast in broad, unambiguously universalistic terms, giving all persons a remedy for injury-causing deprivations of federal law inflicted by persons acting under color of law. Writing for the court, Douglas correctly concluded the statute "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions."

Justice Douglas' early impulse was correct. There is an imperative need at the heart of both the constitution and Section 1983, for doctrine that is neutral between persons and state, between government and governed. The texts themselves, once constitutional lines have been drawn, are neutral. As well, the various federal court's elaborations of those texts should and should have been neutral. It should not, more than one-half century later, still be controversial or complicated that deputies blowing through three distinct constitutional guarantees and, thereby, shooting someone who has done nothing volitionally wrong, should be held responsible for the natural consequences of their actions.

On the surface, then, Mendez, in attempting to clean up and enforce doctrine, is generally a nod towards clarity and fairness. But it is, in at least one sense, a potentially ridiculous failure as well. Since Monroe, federal jurists have injected all manner of complexity into constitutional tort law not present in the common law tort system it is intended to mirror. Mostly, they are doctrines overtly meant to help law enforcement, such as immunity doctrines, or monkish disputes regarding when a municipality, because an ancillary statute defines it as a "person," intended to violate a constitutional right. In cases such as Graham, constitutional doctrine and related dicta regarding when a use of force is actionable, instead of coming from a vantage of objective neutrality, read like judicial valentines to law enforcement.

As a result, cases such as Mendez ultimately have so many moving constitutional parts that obtaining an otherwise coherent and merited judgment requires odyssey and luck. As a matter of game theory, it is easy to draw a hypothetical scenario producing a counterintuitive, unjust result. And, if there is nothing to prevent the unjust in theory, there is danger in practice.

Imagine, for purposes of argument, each jurist hearing the Mendez's claims - the district court judge, each member of the reviewing panels, and each justice - is privately convinced the deputies, through some combination of the three constitutional blunders, are legally responsible for the harm inflicted on plaintiffs. It's no stretch. Mendez, after all, did not, like Hamlet, yell "a rat, a rat," then plunge a rapier through the curtain. Mendez was merely startled by circumstances.

Secondly, imagine each of some combination of those jurists prefers a different doctrinal method to reach the same and otherwise defensible conclusion; each with one or more, but not necessarily all of the three constitutional doctrines; each with a potentially different consideration regarding what constitutes a proximate or superseding cause; and each with various opinions regarding which of the three constitutional offenses is shaded by the two part qualified immunity test. Finally, imagine that each of these issues are decided at different stages in the litigation, so that some decisions are subject to review, while others become law of the case, or subject to judicial estoppel.

In short, the damage award in favor of plaintiff could be undermined simply because various judges fail to reach the ultimate destination, as they have, in turn, taken ill-timed, conflicting routes. It is a potential failure caused by idiosyncratic and unnecessary complexity built into a system which is supposed to be consistent and coherent. The result is justice lost in a thicket of procedure and doctrine. Jurists who cannot get to justice. A system, more than 50 years after Monroe, which still hems and haws regarding what is actionable after a warrantless search, with all the adverse consequences for vindicating rights and deterring official misconduct such doctrinal stuttering implies.

Cast in this light, the Mendez court could have just as easily reached the opposite conclusion, that the provocation doctrine is a useful doctrinal tool for counterbalancing procedural and doctrinal cross-winds shearing an otherwise correct result, a result commensurate with the neutral call of the Fourth Amendment and section 1983. Or, cutting the Gordian knot, the court might easily have concluded that, regardless which three constitutional doctrines are singularly or collectively referenced, the plaintiffs did nothing wrong; therefore, the deputies necessarily are, at least under these circumstances, the only possible "but for" cause of the injury.

Contrariwise, more patchwork doctrine atop doctrine only tends to propagate new problems, new complexity. At the heart of both the Bill of Rights and the enabling statute for constitutional torts is an imperative to create neutral rules and unwind their opposites, leaving relevant fact finding for juries. That is, a constitutional tort system incrementally determined, not by top-down reasoning jurists deriving interested and dated doctrines, but, like the common law tort system it was meant to mimic, ground up, case by case by fact-finders. Mendez at least leans this way.