LOS ANGELES (CN) – A three-judge panel at the Ninth Circuit said Monday that two homeless residents shot by police officers who entered their shack should have protections against warrantless searches and questioned whether probable cause was properly established in the lead up to the confrontation.
The panel heard arguments on whether a homeless couple shot and injured by officers could recover damages based on the officers’ failure to secure a warrant.
The plaintiffs, Angel and Jennifer Mendez, had permission to reside in a shack on someone’s property when they were shot by officers searching for a parolee who was seen by informants in the area. Officers claim to have seen a rifle pointed at them by Angel Mendez.
The Ninth Circuit had previously decided Los Angeles County Sheriff’s Department Deputies Christopher Conley and Jennifer Pederson were liable for the shooting because they entered the shack where the couple was staying without a warrant.
The Supreme Court vacated the Ninth Circuit decision and remanded the case back to appeals court.
Judge Marsha Berzon said probable cause wasn’t clearly established by the officers. She asked if the court should ignore the way the officers entered the shack.
“If [officers] had a warrant, they wouldn’t have barged in at the speed they did,” Berzon said. “It seems pertinent.”
Melinda Cantrall, representing the defendants, argued that in order for “proximate causation” of injuries to be established, the court needs to determine whether warrantless entry led to plaintiffs’ injuries.
She argued that the outcome would have been the same even if the officers had a warrant.
Judge George Steeh III disagreed.
“We don’t know that at all,” he said. “The police could have announced themselves. “
Leonard Feldman, representing the plaintiffs, said officers “created the need for force” and should have known they were entering a dwelling.
“When [officers] enter without ensuring the residents know they’re police, they risk injury,” Feldman said.
Cantrall argued that Angel Mendez aimed the gun at officers because he was startled by their presence, a ”foreseeable risk” during operations, not because officers didn’t have the proper warrant to enter his dwelling.
“A resident cannot attack or threaten an officer even if they don’t have a warrant,” Cantrall said.
Judge Berzon disagreed that Mendez aimed his rifle at the officers.
If he did aim his BB gun at what he thought were intruders, he would be protected by the Second Amendment, she said.
“Society has an interest in citizens complying with officers’ request even without them showing a warrant,” Feldman said. “The societal interest is that police don’t go barging in.”
Judge Berzon interjected to ask Feldman if a settlement was possible in the case.
“We tried that and weren’t successful,” Feldman said. “This case has been vigorously litigated because [the plaintiffs] were not living in a traditional home and police feel they can do things they wouldn’t otherwise do.”
At the time of the shooting in October 2010, police were searching for Ronnie O’Dell.
Investigating a tip that O’Dell was spotted riding a bicycle outside the residence of Paula Hughes in Lancaster, California, the officers entered the property without a warrant and began going through Hughes’ sheds.
Hughes initially refused to let the officers search the main house, but relented when they prepared to break down her door. O’Dell wasn’t on the property.
The officers still wanted to search a wooden shack in the yard.
As the officers approached the shack, they knew that Hughes was allowing a man and his pregnant girlfriend to live in her backyard; and they knew the man was not the parolee they were looking for.
Angel and Jennifer Mendez had been napping in the shack as officers approached.
Hearing the door open, Angel wanted to put his feet on the floor, but needed to move his BB gun rifle first to do so.
The officers were pulling back a blue blanket hanging from the top of the door frame when they claimed to have seen the silhouette of an adult male holding what looked like a rifle.
Two of the officers began firing, hitting Angel several times and the pregnant Jennifer. Angel had to have his right leg amputated below the knee because of the shooting.
In a March 2016 decision, the Ninth Circuit upheld the decision by U.S District Judge Michael Fitzgerald to award $4 million to the couple.
In addition to violating Fourth Amendment law by entering the shack without a warrant, the officers are also liable for the plaintiffs’ excessive force claims, because the shooting was “a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment,” Ninth Circuit Judge Ronald Gould wrote in the court opinion.
At the time, the panel did support immunity for the officers as to claims that they violated the knock-and-announce rule when they did not announce their presence at the shack before entering it.
The county petitioned for Supreme Court intervention, which vacated the Ninth Circuit’s decision in May 2017.
The court took issue with a rule adopted by the lower court that permits an excessive force claim under the Fourth Amendment “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation,” it said in its decision.
The justices directed the Ninth Circuit on remand to revisit whether proximate cause permits the plaintiffs to recover damages for their shooting injuries based on the officers’ failure to secure a warrant at the outset.