SCOTUS Weighs Liability for Police Who Shot While Trespassing

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By Jessica DaSilva

Los Angeles County police officers could be personally liable for $4 million awarded to a homeless couple they shot in a shack they called home, after oral argument before the U.S. Supreme Court March 22 ( Los Angeles Cty. v. Mendez , U.S., No. 16-369 , argued 3/22/17 ).

The couple survived the shooting, and the U.S. Court of Appeals for the Ninth Circuit upheld the award. It based its decision on a legal theory called the provocation rule, which typically opens up police to personal financial responsibility when they engage in unconstitutional conduct eliciting a violent reaction from the victim.

Here, the failure to obtain a search warrant was sufficient provocation to open them up to liability because it violated the constitutional rights of the homeless couple living in the shack, the Ninth Circuit held. This stance made the it an outlier among the federal circuits.

Both parties agreed that the police officers acted reasonably because they shot the couple after entering and seeing a firearm—later proved to be a BB gun—pointed at them.

But the parties disagree on where the analysis for liability begins. The county wants justices to analyze the officers’ conduct from the moment they opened the door, while the couple argues the analysis begins when police decided to forego a search warrant. If the court looks at the entire timeline from the failure to obtain a search warrant, the couple will likely win.

Bearing the Loss

Officers shouldn’t have to consider the risk of personal liability in a moment when they think: “This is where I’m going to die,” said attorney E. Joshua Rosenkranz, arguing for the county.

“That’s a very moving statement,” Justice Justice Sonia Sotomayor interrupted. “We’re not asking them to make that choice. But the issue is who is going to take that loss. When does the police officer have to pay that loss to the victim who is suffering?”

Sotomayor’s background as a criminal trial court judge became immediately apparent when she followed up with a series of questions analyzing various circumstances in which police are justified in making entries without warrants and use deadly force.

Her questions were supplemented by Justice Elena Kagan, who pressed the county to explain how it could question that officers caused the violent reaction because of their failure to get a warrant.

But Rosenkranz argued the warrant wouldn’t have changed officers’ conduct, so it couldn’t have triggered use of the provocation rule.

Trespassing Police?

Justice Samuel A. Alito Jr. pressed the victims’ attorney about whether a civil rule that treats police as trespassers applied in the criminal context. Typically, homeowners are protected in actions taken against trespassers, rather than guests they invite into their homes. If the police are treated as trespassers, it would undermine their shooting of the victims.

But Leonard Feldman of Seattle, representing the victims, maintained that his client wasn’t asking for the court to adopt a new test for analyzing officers’ reasonable conduct. Rather, the court should use a totality of the circumstances approach that would take into consideration all the facts regarding the police and victims’ conduct, Feldman said.

Alhough the entry into his clients’ shelter and failure to obtain a search warrant couldn’t alone establish proximate cause, that doesn’t mean that they can’t establish provocation when considered together.

That would merely change “legality of the conduct, but you can’t change the conduct,” Feldman said. Regardless whether the officers’ individual actions are found to be constitutional, the court need not be totally blind to the conduct when weighing whether police should be held liable for injuries resulting from that conduct, he argued.

That’s why the facts should be analyzed “holistically” rather than fragmented, he added.

To contact the reporter on this story: Jessica DaSilva in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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