The ‘reasonable cop’ standard

On Oct. 1, 2011, as Angel Mendez and Jennifer Lynn Garcia lay in bed in their tiny Lancaster home, two Los Angeles County sheriff’s deputies entered without knocking, without a search warrant, without identifying themselves and with guns drawn.

Startled at the sudden and unannounced intrusion, Mendez moved his hand on a BB gun that he used to shoot rats. One of the deputies shouted “Gun!” — and then they both fired 15 shots into the home, striking Garcia in the back and critically injuring Mendez, who had his leg amputated as a consequence.

In Wednesday’s oral arguments, the U.S. Supreme Court will hear from lawyers for the deputies and L.A. County why the costs of that disastrous encounter ought to be picked up by Mendez and Garcia, rather than the two people who unlawfully entered their home under color of authority and shot them. Lawyers for Mendez and Garcia will argue why a ruling by the 9th U.S. Circuit Court of Appeals in their clients’ favor should stand.

At its heart, this is a case about the broad immunity that protects police and government from liability for outrageous and unwarranted assaults on innocent civilians in the name of protecting the safety and liberty of those very people.

The Supreme Court in its 1989 ruling in Graham vs. Connor recognized that police officers have inherently dangerous jobs and are often confronted with situations that require split-second decision-making, and that in liability cases they should not be subjected to Monday-morning quarterbacking in a courtroom. In determining whether an officer’s use of force or other action violated the Fourth Amendment’s guarantee against unreasonable search and seizure, the standard under Graham is not how a reasonable person, but how a reasonable police officer would have acted in a similar situation.

That’s an appropriate degree of deference — in theory. The problem is that when carelessly applied, it shields officers from the consequences of unlawful actions and gives police nearly unfettered power to determine what conduct is or is not beyond the pale.

The immediate questions in the Mendez case are whether the deputies, seeing the gun and believing their lives were in danger, acted reasonably by firing, and whether they lose their immunity from liability because their entry into the home was unlawful. In other words, whether their action should be judged by what they did leading up to the shooting, and not just by the shooting itself.

But the justices also ought to consider whether a person lying in his own bed in his own home, be it a mansion or a shack, might reasonably be startled and reach for a lawful weapon when unidentified people break in with guns drawn. If officer safety is paramount, how do we rank the safety — and the constitutional right to be free of unreasonable search and seizure — of the innocent person at home?

There are three avenues of response to misuse of police force: Criminal prosecution, professional discipline and a civil lawsuit for damages.

In high profile, fatal use-of-force cases like Michael Brown in Ferguson, Mo., Freddie Gray in Baltimore and Ezell Ford in Los Angeles, the public most often focuses on prosecution, and activists argue for criminal charges against officers. But the bar for criminal charges is high — and properly so — and convictions are rare.

California laws block access to most police discipline records, so the public has little opportunity to learn whether their police and sheriff’s departments hold officers properly accountable for reckless acts, or if they encourage officers to be aggressive despite the consequences to the lives and liberty of the innocent.

The clearest opportunity to protect the public from expansive police misconduct is in civil lawsuits like the one that Mendez and Garcia filed and won, but now must defend in the Supreme Court. If the justices act wisely and uphold the 9th Circuit, Los Angeles County taxpayers may be liable along with the deputies for $4.2 million. That’s the irony — that the public may have to pay in order to impose reasonable boundaries on the police and sheriff ’s deputies who they hire to protect them.