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Yesterdays argument in County of Los Angeles v. Mendez was, in a word, unsatisfying. The question of governmental liability for a law enforcement shooting of innocent individuals is extremely fact-intensive, and the law in this area is unsettled enough that assembling a majority for general Fourth Amendment rules on this record presents quite a challenge. It is possible to imagine some general statements that the court could agree on, but when it comes time to either affirm or reverse the specific award here, the justices might well split 4-4. Accurate tea-leaf reading seems impossible based on this argument transcript; the justices themselves seemed undecided. But in the end, at least four justices may view a tie as the fairest result on this record: The damages award for the sympathetic plaintiffs here would be left in place, without a divided Court issuing conflicting opinions on the law.

A Fourth Amendment violation, but a subsequent reasonable shooting

As previewed here, Angel Mendez and his wife present sympathetic facts, while the law enforcement officers start off with a Fourth Amendment violation. In brief:

Two Los Angeles County Sheriffs deputies were sent into the backyard of a home, while other officers forced their way into the house itself without a warrant or consent. In the backyard, the deputies came upon a shack occupied by the Mendezes. Guns drawn, the deputies opened the door of the shack without a warrant and without knocking or announcing who they were. Mendez, not knowing who was barging into his home, picked up a BB gun (just moving it, not aiming it, as the district judge found) in order to get out of bed. Seeing this, the deputies opened fire, causing significant injuries. Mendezs leg had to be amputated below the knee.

After a five-day bench trial of the Mendezes civil suit against the county and the deputies, the district judge settled many disputed facts and legal questions, and calculated damages for the Mendezes at roughly $4 million. The judge ruled that the deputies (at the house and at the shack) had violated the Fourth Amendment by conducting their entries without a warrant; no exceptions to the warrant requirement applied. The judge also ruled that the deputies had violated the Fourth Amendments knock and announce requirement. But the judge further ruled that at the moment they fired their guns, the deputies were acting reasonably because they thought someone was going to shoot them. However, after all was said and done, the judge concluded that the government was liable for the damages because the deputies had recklessly provoked the confrontation (by entering without a warrant and without announcing).

The U.S. Court of Appeals for the 9th Circuit affirmed the award on appeal. Although law enforcement officers are entitled to official immunity unless they violate clearly established rights, the court of appeals ruled that the Fourth Amendments warrant requirement was clearly established; thus the officers are not immune from damages for that violation. But the court also ruled that it was not clearly established that the deputies had to knock and announce in this specific context, because the officers at the house had already knocked and announced. So (as was assumed at the argument yesterday), because the deputies receive official immunity for the knock and announce violation, that violation cannot support an award of damages. Nevertheless, the 9th Circuit affirmed the award on two grounds: (1) under the circuits own provocation doctrine, the deputies can be liable if they recklessly provoked the situation; and (2) even aside from provocation, the deputies are liable under basic notions of proximate cause.

Oral argument: four justices advocate relief, while four others see no proximate cause?

Yesterdays argument addressed both of the 9th Circuits grounds, but focused almost entirely on the second one, proximate cause. (No justice mentioned the Mendezes briefed argument that the countys cert petition had presented three questions but then reduced them to two somewhat different questions at the merits stage.)

Justice Sonia Sotomayor jumped in first, appearing to defend damages for police shooting victims who had nothing to do with causing the loss. Noting that homeowners have a Second Amendment right to possess firearms to protect themselves, Sotomayor and (and later Justices Elena Kagan and Stephen Breyer) seemed to suggest that deputies should reasonably foresee a violent confrontation if they enter unlawfully.

But Josh Rosenkrantz, an experienced Supreme Court advocate who argued for the county, firmly and repeatedly reminded the court that the failure to knock and announce in this case is assumed not to violate clearly established law, so that damages cannot be based on that. Kagan then presented perhaps the best argument for the Mendezes: Shouldnt this be viewed more generally as an unauthorized entry that violates the Fourth Amendment and can support damages? Breyer similarly asked a bit later why do you break it down this way? and if you look at all the circumstances, why isnt there proximate cause? Justice Ruth Bader Ginsburg also offered a couple of seemingly favorable remarks; that adds up to four justices possibly favoring the Mendezes.

Indeed, Leonard Feldman, about to argue for the Mendezes, must have been pleased when Justice Anthony Kennedy (a potential fifth vote) then got into a brief squabble with Rosenkrantz. Kennedy presented a hypothetical, and when Rosenkrantz gave a no damages response, Kennedy said, then we simply have no way to enforce the warrant requirement, you want us to write that in the law? But as described below, any hope by the Mendezes for Kennedys vote appears to have been short-lived.

Nicole Saharsky then argued for the solicitor general in support of the county, and she focused her remarks more generally on the 9th Circuits provocation doctrine. Sotomayor asked why does a police officer get a pass if the officer creates the dangerous situation? But Chief Justice John Roberts intervened, asking is the label whats wrong? and noting that I dont think of it as provocation that you should have gotten a warrant earlier in the day. Saharsky stayed focused on her general critique of the provocation theory, calling it incredibly ill-defined. But Kennedy then shifted the argument back to one of proximate cause those are two different things, right?

Kagan continued to press the best argument for the Mendezes, seeking agreement that in general, an unauthorized entry produces violence or might produce violence. The justices also demonstrated the special position that the solicitor generals office occupies, permitting Saharsky to add one more sentence to her argument not once but three times after her time had expired.

Feldman who also argued the Sheehan case two terms ago in which Justice Samuel Alitos opinion for the court noted criticism of the provocation doctrine then began by presenting a generalized balancing test that appeared to gain no traction with the court. (Justice Antonin Scalia would have blanched balancing tests were his bane.) Kennedy drove the argument back once more to the specific question of proximate cause on this record and then flatly said, I just dont see the proximate cause between failure to get the warrant and what happened here. Alito (a longtime critic of the provocation doctrine) mildly challenged Feldman, and Roberts then focused firmly on the relationship between not getting a search warrant and the shooting: Why did that make a difference? [T]he failure to get a warrant did not cause the entry. That too seems to add up to four votes, against the Mendezes, if one assumes that Justice Clarence Thomas (who asked no questions) is also likely to side with the county.

When Roberts repeated, I dont know why the failure to get a warrant matters, Kagan immediately asked, can I suggest why?, and did. As she continued her explanation, Roberts, in his low-key way, offered perhaps the best line of the term: Counsel [referring to Kagan], if I could interrupt you to ask a question.

Conclusion: the real action is in conference, and the result seems uncertain

As with all the courts arguments, there is much more in the transcript than can be recounted here. But Kennedy summed it up at the end, quietly implying that the real action will happen during the justices private conference this week: Based on the arguments of counsel, we [and I would emphasize the we] can have our discussion as to whether or not it was indeed proximate.

Re-reading the transcript, I honestly am not sure what the justices will do. If the desire to end or limit the provocation doctrine is strong, perhaps some opinion (or opinions) will issue. On the other hand, it is not hard to imagine an even split here, with four justices firmly believing that the Mendezes innocent actions, coupled with the deputies unreasonable behavior, justify affirming the award. Yet there is little doubt that some justices would strongly dislike that outcome. In that case, I can also imagine seeing something Ive never seen before (although Professor Dan Epps advised me late last night of one precedent from 1960): separate unhappy opinions accompanying a one-sentence affirmed by an evenly divided court judgment.

Posted in County of Los Angeles v. Mendez, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause, SCOTUSblog (Mar. 23, 2017, 11:24 AM), http://www.scotusblog.com/2017/03/argument-analysis-unsatisfying-argument-regarding-fourth-amendment-qualified-immunity-proximate-cause/

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Argument analysis: An unsatisfying argument regarding Fourth Amendment qualified immunity and proximate cause - SCOTUSblog (blog)

In the year since Justice Antonin Scalia died, the eight-justice court has repeatedly decided only issues that they can agree on, and has frequently remanded more difficult questions for future resolution. Unsurprisingly (see my post-argument analysis), that pattern held true in todays decision in Manuel v. City of Joliet. A 6-2 majority ruled that the Fourth Amendment is the proper basis on which to challenge a post-arrest detention that was continued for seven weeks, allegedly without probable cause. Beyond that, Justice Elena Kagans opinion le[ft] all other issues for remand, over Justice Samuel Alitos and Clarence Thomas dissents.

Taking the complaint as true

Elijah Manuel alleged that an officer pulled him from a car, beat him, called him racial slurs, and then arrested him for drugs even though a field test on pills Manuel was carrying came back negative. He further alleged that an evidence technician at the police station conducted another test on the pills that also came back negative, but that the technician falsely stated that the test was positive. Another officer then swore out a complaint against Manuel; based on all these false statements, a county judge ordered Manuel to be detained. Manuel was not released until seven weeks later, after a state police lab reported that the pills contained no controlled substances and for unknown reasons, the state prosecutor waited a month to move for dismissal. Two years later, Manuel sued the City of Joliet and its officers for violation of his civil rights under 42 U.S.C. 1983, alleging two Fourth Amendment violations: his false arrest and his prolonged unlawful post-arrest detention.

The district court dismissed Manuels challenge to his arrest under the applicable two-year statute of limitations, because Manuels lawsuit had been filed more than two years after the date of his arrest (although within two years of his release from detention). As for the detention, the district court relied on circuit precedent to rule that a detention occurring after lawful process is instituted (here, the county judges detention order) could be challenged only under the due process clause, not the Fourth Amendment. The U.S. Court of Appeals for the 7th Circuit affirmed.

The Fourth Amendment question answered by the court

Todays holding is clear: An unlawful pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. Despite stray suggestions by lone justices in some prior cases, such a pretrial detention claim fits the Fourth Amendment as hand in glove. When some formal legal process has gone forward based on, as was alleged here, false law enforcement statements, that process has done nothing to satisfy the Fourth Amendments probable cause requirement. The Fourth Amendment, and not the due process clause, provides the appropriate lens through which to view [such] a claim.

Remaining questions not answered

Justice Kagans crisp opinion acknowledges that it addresses only the threshold inquiry, and notes that determinations of the elements of, and rules associated with, an action seeking damages for an unlawful-pretrial-detention action still must be made. Specifically here, the question whether the Fourth Amendment action accrues on the day the detention started, or does not accrue until the detention ends, remains (although the majority does provide an end-point, saying in a footnote that for an unlawful pre-trial detention claim, once a trial has occurred, the Fourth Amendment drops out). After offering brief comments regarding the general relationship of state common law rules and remedies to federal civil rights actions, the court remanded on any remaining issues, repeating a familiar point: [w]e are a court of review, not of first view.

Here is the courts general guidance: Federal courts reviewing claims under Section 1983, when not bound by federal law, should look first to the common law of torts. But such common law is meant to guide, rather than to control, federal actions, more as a source of inspired examples than of prefabricated components (quoting Hartman, 2006). Federal courts can apply, select among, or adjust common-law approaches, and must closely attend to the values and purposes of the constitutional right at issue.

Justices Alito and Thomas dissent, but not from the narrow holding

Justice Samuel Alitos dissent, joined by Justice Clarence Thomas, begins: I agree with the Courts holding : The protection provided by the Fourth Amendment continues to apply after the start of legal process. That much, then, is unanimous. Alito disagrees, however, with any further suggestion that new Fourth Amendment claims continue to accrue as long as pretrial detention lasts. He says this would stretch[] the concept of a seizure much too far. Similarly, Manuel should not receive the benefit of a favorable termination accrual rule, because that rule applies only to common-law malicious prosecution claims, and those sorts of claims are not Fourth Amendment claims in Alitos view.

Alito argues instead that a Fourth Amendment violation is fully accomplished when an impermissible seizure [first] occurs so that the two-year limitations period would have run in this case. (On this narrow point Thomas filed a separate two-paragraph dissent, saying that although he agrees generally with Alito, he would leave the precise moment of accrual open for a case in which it actually matters.) Alitos first seized accrual theory would conflict with a contrary continuing violation theory that has previously been advanced by Justice Ginsburg a disagreement that the majority today assiduously avoids resolving.

Finally, Alito criticizes the majority for not considering every issue included in the Question Presented that Manuel asked the court to review. Kagan responds in footnote 10 that we have resolved the primary issue presented, and the fact that Manuel jumped the gun on further issues provides no warrant for our doing so too.

Conclusion

Although Alito also claims that the courts opinion inject[s] much confusion and will dramatically expand[] Fourth Amendment liability, the Fourth Amendment ruling that the majority does announce that the Fourth Amendment, and not the due process clause, governs a claim of unlawful pretrial detention was the same answer given previously by ten other federal appellate courts. It seems narrow enough to give lower courts guidance while not unnecessarily resolving further points that were not well-presented, or well-argued, here.

Click for vote alignment by ideology.

Posted in Manuel v. City of Joliet, Analysis, Featured, Merits Cases

Recommended Citation: Rory Little, Opinion analysis: The Fourth Amendment governs unlawful pretrial detention claims even after legal process begins; everything else is remanded, SCOTUSblog (Mar. 21, 2017, 4:15 PM), http://www.scotusblog.com/2017/03/opinion-analysis-fourth-amendment-governs-unlawful-pretrial-detention-claims-even-legal-process-begins-everything-else-remanded/

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Opinion analysis: The Fourth Amendment governs unlawful pretrial detention claims even after legal process begins ... - SCOTUSblog (blog)

(CN) The Supreme Court ruled Tuesday that an Illinois man can sue for malicious prosecution over his pretrial detention after he was jailed for 48 days because police falsified his drug-test results.

The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause, Justice Elena Kagan said, writing for the courts 6-2 majority. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong when, for example, a judges probable-cause determination is predicated solely on a police officers false statements.

Elijah Manuel was arrested in March 2011 for possession with intent to distribute ecstasy after Joliet, Ill., police found a vitamin bottle on his person containing pills. A field test of the bottles contents came back negative for any illegal drugs.

But Manuel was arrested anyway, and an evidence technician allegedly lied in his report, claiming that one of the pills was an ecstasy tablet.

On this allegedly fabricated evidence, a judge found probable cause to suspect Manuel of drug possession, and sent him to jail to await trial.

A second lab report issued two weeks after his arrest again found that the pills contained no ecstasy, but Illinois still arraigned Manuel and made him sit in jail another month before dismissing the charges.

Since Manuel spent 48 days in lockup, he had to miss work and drop the college courses for which he had already paid.

Though Manuel filed a federal complaint against the city of Joliet and various officers, most of his civil rights claims brought in 2013 were deemed time barred.

Manuel did have a timely claim for malicious prosecution, but the trial court dismissed this count as well under the 2001 case Newsome v. McCabe, in which the Seventh Circuit ruled that a person cannot challenge their pretrial confinement under the Fourth Amendment. The Seventh Circuit affirmed the trial courts dismissal of Manuels malicious prosecution claim.

Ten other federal appeals courts have taken the opposite view that the Fourth Amendment right to be free from seizure absent probable cause extends through the pretrial period.

The U.S. Supreme Courts Tuesday opinion reversed the Seventh Circuit and issued a firm rebuke to the Chicago-based appeals courts position on this issue.

Contrary to the Seventh Circuits view, Manuel stated a Fourth Amendment claim when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention, Kagan said. (Parentheses in original.)

Chief Justice John Roberts and Justice Anthony Kennedy joined the courts liberal wing in Tuesdays decision.

All that the judge had before him were police fabrications about the pills content. The judges order holding Manuel for trial therefore lacked any proper basis. And that means Manuels ensuing pretrial detention, no less than his original arrest, violated his Fourth Amendment rights, the majoritys ruling states.

Justices Samuel Alito wrote a dissent, which Justice Clarence Thomas joined.

The court stretches the concept of a seizure much too far, Alito wrote.

He continued, What is perhaps most remarkable about the courts approach is that it entirely ignores the question that we agreed to decide, i.e., whether a claim of malicious prosecution may be brought under the Fourth Amendment. I would decide that question and hold that the Fourth Amendment cannot house any such claim.

Excerpt from:
Justices Affirm Pretrial Fourth Amendment Rights - Courthouse News Service

The perception in Washington is that if one side is for something, the other side will stand against it. Fromhealth care to immigration reform to job creation and more, thepartisan establishments on both sides of the aisle could not appear further apart.

Yet if there is one issue that the political elite in Washington can agree on it is the expansion of the surveillance state, even at the risk of Americans privacy. Democrats and Republicans have jointly taken several actions in modern history that have expanded the size and scope of the Deep State.

When WikiLeaks published leaked documents from the CIA in early March, for instance, many Republicans immediately called for an investigation into the identity of the leaker(s) and their prosecution. Meanwhile, many Democrats simply accused WikiLeaks of being an arm of the Russian propaganda machine and overlooked potentially alarming revelations.

But this isnt new, and perhaps no one knows the bipartisan support behind the expansion of the surveillance state more than former NSA contractor and whistle-blower Edward Snowden.

During the Obama administration, several Republicans and Democrats supported the prosecution of Snowden, Chelsea Manning, and others who released classified or sensitive information to the press or groups like WikiLeaks.

After exposingNSA programs that collected massive amounts of data on American citizens, Republicans and Democrats alike seemed more concerned about prosecuting Snowden than addressing the potentially unconstitutional actions of the intelligence community.

Not much has changed under the Trump administration.Trump has called Snowden a traitor and previously voiced his supportfor the NSA and itswide ability to gain intelligence underthe Patriot Act, a law passed with overwhelming bipartisan support in the wake of September 11, 2001.

While Washington is focused on continued investigations into alleged meddling by the Russian government during the 2016 election and Donald Trumps accusations that he was surveilled during the campaign, WikiLeaks first publication of CIA documents was quickly dismissed on Capitol Hill and in the mainstream media.

A common reaction from members of both parties is that WikiLeaks has damaged national security by publishing Vault 7. Yet, this fails to acknowledge or address allegations thatthe CIA lost control of much of its cyber arsenal and some of it was even sold by contractors working with the CIA. What does that mean for national security?

In a post-9/11 America, there is no partisan divisionon the growth of the surveillance state. Accountability, oversight, and protection of citizens rights have taken a back seat to security at all costs. Protecting the Fourth Amendment, which protects every Americans right to privacy, is not a concern for either the Republican or Democratic establishments.

Photo Credit: bluebay / shutterstock.com

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Both Parties Agree: Protecting the Fourth Amendment is NOT a Priority - IVN News

In Mondays morning links, I noted the story of Andrew Scott, a Florida man who was shot and killed by a police officer who came to his home, pounded on his door and never identified himself as law enforcement. Scott wasnt suspected of any crime and did nothing illegalduring the altercation. What he did do is grab his own gun, which he held pointed at the floor after he was understandably startled by the banging on the door to his apartment. Scott opened the door, saw a figure with a gun and then attempted to closethe door. The officer fired six shots, three of which struck Scott, killing him. Last week, the U.S. Court of Appeals for the 11th Circuit threw out the lawsuit filed by Scotts family, finding that the officer who killed Scott is protected by qualified immunity, the court-invented doctrine that makes it nearly impossible to sue police officers, even for egregiously over-the-top use of force that ends in death.

As Slates Mark Joseph Stern points out, this is something that should worry not just Fourth Amendment advocates, but also those who care about the Second Amendment. Citing the dissent written by 11th Circuit appeals court Judge Beverly Martin, Stern writes:

The most fascinating part of Martins analysis centered around Sylvesters insistence that the shooting was justified because Scott opened the door while holding a firearm. This conclusion that deadly force was reasonable here, Martin noted, plainly infringes on the Second Amendment right to keep and bear arms. Citing the Supreme Courts decision in D.C. v. Heller, which affirmed an individual right to handgun ownership under the Second Amendment, Martin wrote, If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the fateful decision to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

That seems exactly right to meand it raises an important point: The 11thCircuit has now effectively found an individuals FourthAmendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.

One would think. Over at National Review, David French made a similar point.

On Wednesday, the Supreme Court will hear oral arguments in L.A. County v. Mendez, a case that could give them just such anopportunity to address the issue. The case stems from a 2010 confrontation between Angel and Jennifer Mendez and L.A. County deputies Christopher Conley and Jennifer Pedersonin the couples home.

In October 2010, thetwo deputies were looking for a rogue parolee. According to the deputies, a confidential informanttold them that a man who fit the description of the parolee had beenspotted riding a bicycle in front of a house owned by a woman named Paula Hughes. Acting only on that tip (note, the man wasnt spotted on a parked bike at the house; he was seen ridingbyit), the deputies searched the house without a warrant. Before the search, the deputies had also been told that Hugheshad let a down-on-his-luck high school friend named Angel Mendez and his pregnant wifebuild a little shack and live in her back yard. After not finding their fugitive parolee in the house, DeputyPedersonannounced that she was going to clear the back yard. Conley joined her. They still hadnt bothered trying to obtain a warrant.

Knowing that the shack in the yard was a residence, the two entered it without knocking or announcing themselves, as theyre required to do by law. Angel Mendez kept a BB gunnear his bed to shoot away pests. When the police entered his home without knocking or announcing, he was startled and reached for the gun. Deputies Conley and Pederson then opened fire, sending 15 bullets toward Angel Mendez and his wife. Jennifer Mendez was struck in the back. Angel Mendez was hit in the back, right arm, right hip, right shin and left foot. His right leg had to be amputated below the knee.

The case turns on a long-standing problem created by the consistently deferential way the courts treat police officers. Absent clear evidence to the contrary, cops who violate laws or constitutional rights are assumed to have done so inadvertently. But what happens when those violations of law or constitutional rights cause a suspect to take (also justified) actions that then cause police officers to reasonably fear for their lives and to then use lethal force? In this case, the deputies clearly violated the Fourth Amendment, several times over. But after they did so, Mendez reached for what probablylooked like a real gun. Under the law, once he did, the deputies were justified in using lethal force. But Mendez was also justified in his own actions, given that the deputies had violated his own Fourth Amendment rights, and he quite reasonably feared for his safety.

The cops cant be criminally charged for the shooting. In theory they could be sued, but inevery circuit in the country but the 9th, federal appeals courts have ruled in favor of the police in such instances. But the 9th Circuit has adopted a doctrine of provocation. That doctrine says that if unconstitutional police actionscreate a chain of events resulting in theuse of force,the initial violations make the police civilly liable for harm caused by that force, even if other circumstances transpired to make the use of force itself reasonable. So far, because of the provocation doctrine, both the district court and the U.S. Court of Appeals for the 9th Circuit have ruled in favor of the Mendezes. Los Angeles County appealed to the Supreme Court late last year, and the court granted cert.

Conceivably, theSupreme Court could go a number of different ways. It could adopt the provocation doctrine for the entire country, strike it down completely or find some way to resolve the case without doing either. Defense attorney and legal blogger Scott Greenfield isnt optimistic:

The grant of cert directly calls into question whether the provocation doctrine should be upheld or overruled. This isnt to say which way the Supremes will go, or whether they will ultimately rule on it at all, but it bodes poorly for the rule given that the Ninth Circuit hasnt fared particularly well in the Supreme Court, and that the doctrine hasnt been adopted by other circuits.

Noting that this doesnt affect the propriety of the conduct, the shooting, which was held reasonable and is not up for review, but rather whether the deputies will enjoy qualified immunity for their constitutional violations, a win for the Mendezs at the Supreme Court would be enormously significant, bringing a huge dose of reason to the latitude given police officers to create, then exploit, unconstitutional conduct. Perhaps the Court will make this the law of the land, but then, smart money is on the death of the provocation doctrine. It just makes too much sense.

If the court ends up striking down the provocation doctrine,gun owners in particular ought to be concerned.Because police departments arent required to keep such data, its difficult to say just how often they raid the wrong house or the right house based on information that turns out to have been wrong. Police advocates will say such mistakes comprise only a tiny percentage of overall raids, but given that criminologist Peter Kraska has estimated that there are somewhere between 50,000 and 100,000 door-breaching raids per year in the United States, and if even 1 percent of those are on the wrong residence, that would result in 500 to 1,000 such mistakes per year.In the documentary Do Not Resist, a Richland County, S.C., SWAT commander said that drug raids are about 50-50, meaning that about half the time they find drugs, and about half the time they dont. Again, due to lack of data, its impossible to say how representative this is. And certainly in some of those cases where the police dont find drugs, its not because they got the wrong house, but because the dealers moved their supply.

Yet given that about 36 percent of U.S. households own a gun, even if we assume that just 1 in 100 police raids target the wrong house or are based on bad information, that works out to180 to 360 gun owners and possibly their families who are wrongly raided by police each year. This is admittedly a crude estimate again, its due to the fact that police departments arent required to keep track of their mistakes. But the general point here is that given the frequency of these raids and the frequency of gun ownership, there will inevitably be some overlap. Such incidents likely happen on a fairly regular basis. And given that these raids are designed to disorient and confuse everyone in the targeted residence, thats a lot of incidents in which things could go horribly wrong.

Those are just the cases in which police raid someone who actually possesses a gun.There have been plenty of other cases in which courts have found that police acted reasonably whenshooting someone during one of these raidsafter mistaking something harmless for a gun, be it ablue cup, a T-shirt or the glint off a wristwatch (all are real incidents). Courts tend to be pretty forgiving of cops in such circumstances, owing to the danger and volatility of these raids. (Never mind that the police are the party that created the danger and volatility and that courts tend to be less forgiving of suspects who make similar mistakes.)In these cases too, absent a provocation doctrine, the shooting would likely be deemed justified even if the initial entry into the house were ruled unconstitutional.

In theory, though the people who get shot in such cases cant sue for the shooting itself, they could sue (or in the cases of those who dont survive, their families could sue) if there was aninitial Fourth Amendment violation. But any damages would be limited to only the harm caused bythe initial entry. Its a safe bet that such cases would see very little payout at all not enough to serve as a deterrent, and probably not even enough to persuade most civil rights attorneys to take the case in the first place.

One other thing: There are only a few tools availableto enforce the Fourth Amendment. One is the exclusionary rule (the rule that evidence seized due to an illegal search is inadmissible at trial). Another is civil liability for police officers. The only real remaining deterrent is professional discipline. InHudson v. Michigan, the Supreme Court refused to apply the exclusionary rule when police fail to properly knock and announce themselves before breaking down a door. If the Supreme Court dispenses with the provocation doctrine too, the only possible remaining deterrent to enforce the knock-and-announce requirement the rule that says the police have to knock, announce themselves and give you time to peacefully answer the door before subjecting you to the violence of a forced entry will be professional discipline. In other words,our sole protection from cops barging into our homes unannounced will be the hope thatother cops will discipline their colleagues for failing to knock and announce and discipline them severely enough that it serves as an effective deterrent. If you read this blog with any regularity, youll know why that isnt exactly encouraging.

Okay, onemorething: Even if theSupreme Courtends the provocation doctrine in the 9th Circuit, it doesntneed to be the death of the doctrine. As is often the case, the court would only be settingthe upper limits ofstate conduct. If they wanted to, Congress or any state legislature could still pass a law to codify the provocation doctrine. That, of course, would take some political will. But its important to remember that when it comes to the powers we grant to police, the Supreme Court neednt always be the last word.

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On Wednesday, the Supreme Court will hear a case with major implications for the Second and Fourth amendments - Washington Post