               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANGEL MENDEZ; JENNIFER LYNN          Nos. 13-56686
GARCIA,                                   13-57072
             Plaintiffs-Appellees/
                Cross-Appellants,       D.C. No.
                                     2:11-cv-04771-
                v.                     MWF-PJW

COUNTY OF LOS ANGELES; LOS
ANGELES COUNTY SHERIFF'S               OPINION
DEPARTMENT,
                    Defendants,

               and

CHRISTOPHER CONLEY, Deputy;
JENNIFER PEDERSON,
            Defendants-Appellants/
                  Cross-Appellees.
2                      MENDEZ V. CONLEY

      On Remand From The United States Supreme Court

             Argued and Submitted May 14, 2018
                    Seattle, Washington

                        Filed July 27, 2018

    Before: Ronald M. Gould and Marsha S. Berzon, Circuit
      Judges, and George Caram Steeh III, * District Judge.

                    Opinion by Judge Gould


                          SUMMARY **


                           Civil Rights

   On remand from the United States Supreme Court, the
panel affirmed in part and reversed in part the district court’s
judgment in an action brought pursuant to 42 U.S.C. § 1983
and state law alleging that sheriff’s deputies violated
plaintiffs’ Fourth Amendment rights when during their
search for a parolee-at-large, the deputies unlawfully entered
plaintiffs’ residence and shot them multiple times.

   Plaintiffs, Angel Mendez and Jennifer Lynn Garcia, were
sleeping in a small one-room shed located in the backyard of
the main house when defendants entered the shed, without a

      *
      The Honorable George Caram Steeh III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                     MENDEZ V. CONLEY                          3

warrant or knocking and announcing their presence.
Mendez, roused from his sleep, picked up a BB gun in order
to move it off the futon where he was sleeping, and the
officers, believing they were threatened, opened fire,
severely injuring plaintiffs.

   The panel held, as it did in its earlier opinion Mendez v.
County of Los Angeles, 815 F.3d 1178, 1191 (9th Cir. 2016),
that the officers violated the Fourth Amendment by entering
plaintiffs’ home without a warrant, consent or exigent
circumstances. The panel held that the officers’ unlawful
entry, as distinct from the unlawful mode of entry, that is,
the failure to knock and announce, for which the officers had
qualified immunity, was the proximate cause of plaintiffs’
injuries. Moreover, the panel held that even if it were to treat
the failure to get a warrant rather than the entry as the basis
for the breach of duty, as the defendants suggested, the panel
would still reach the same conclusion regarding proximate
cause. The panel rejected defendants’ assertion that
Mendez’s action of moving the gun so that it was pointed in
their direction was a superseding cause of plaintiffs’ injuries.
The panel held that if an officer has a duty not to enter in part
because he or she might misperceive a victim’s innocent acts
as a threat and respond with deadly force, then the victim’s
innocent acts cannot be a superseding cause.

   Addressing plaintiffs’ California negligence claim, the
panel held that pursuant to the California Supreme Court’s
decision in Hayes v. County of San Diego, 57 Cal. 4th 622,
639 (2013), judgment should be entered in plaintiffs’ favor.
The panel concluded that on remand, the judgment shall be
amended to award all damages arising from the shooting in
the plaintiffs’ favor as proximately caused by the
unconstitutional entry, and proximately caused by the failure
to get a warrant. The panel directed that judgment shall also
4                   MENDEZ V. CONLEY

be entered in the plaintiffs’ favor on the California
negligence claim for the same damages arising out of the
shooting.


                        COUNSEL

Melinda Cantrall (argued) and Thomas C. Hurrell, Hurrell
Cantrall LLP, Los Angeles, California, for Defendants-
Appellants/Cross-Appellees.

Leonard J. Feldman (argued), Peterson Wampold Rosato
Luna Knopp, Seattle, Washington, for Plaintiff-
Appellees/Cross-Appellants.

Adrienna Wong, Staff Attorney; Peter Bibring, Director of
Police Practices; ACLU of Southern California, Los
Angeles, California, for Amicus Curiae ACLU of Southern
California.


                        OPINION

GOULD, Circuit Judge:

    On remand from the United States Supreme Court we are
tasked with deciding whether the unlawful entry into a
residence by two sheriff’s deputies, without a warrant,
consent, or exigent circumstances, was the proximate cause
of the subsequent shooting and injuries to the plaintiffs. We
hold that it was, permitting a federal claim under 42 U.S.C.
§ 1983. We also hold that the plaintiffs have an independent
basis for recovery under California negligence law.
                    MENDEZ V. CONLEY                         5

    Angel Mendez was shot approximately ten times and
suffered severe injuries. He lost much of his leg below the
knee, and he faces substantial ongoing medical expenses.
Jennifer Lynn Garcia (now Jennifer Mendez) was shot in the
upper back and left hand. On the afternoon of the shooting,
both were sleeping in their modest home, a small one room
structure on the property of Paula Hughes. Two Los Angeles
County Sherriff’s deputies, Conley and Pederson,
unlawfully entered the structure. In doing so, they roused
the sleeping Mr. Mendez. In rising from the futon on which
he had slept, Mr. Mendez picked up a BB gun that was on
the futon to place it on the floor. In the process, the gun was
pointed in the general direction of Conley and Pederson.
The deputies, believing that the BB gun threatened them,
quickly opened fire.

     Before the shooting, deputies of the Los Angeles
Sheriff’s Department were searching for a parolee-at-large,
Ronnie O’Dell. A confidential informant had seen someone
resembling O’Dell riding a bicycle in front of Paula Hughes’
home. After a briefing during which officers were told that
a couple resided in a shack behind Hughes’ home, officers
were dispatched to the scene and entered Hughes’ house.
Officers Conley and Pederson, who were among the officers
informed about the couple living in the backyard of the
Hughes property, were charged with searching the area to
the rear of the house. Conley and Pederson, guns drawn and
on alert because they believed O’Dell to be armed and
dangerous, approached the structure in which the Mendezes
resided. There were many apparent signs that the structure
was a residence, including: an electrical cord was running to
it; an air conditioner was installed; and some storage lockers
were nearby. Conley and Pederson nevertheless entered the
structure without announcing their presence, and a split
6                   MENDEZ V. CONLEY

second later, misperceiving the threat posed by the BB gun,
shot the Mendezes, which caused their grave injuries.

    The Mendezes brought claims against the officers under
42 U.S.C. § 1983 for violations of the Fourth Amendment.
They argued that the officers unlawfully entered the shack,
that the officers’ mode of entry was unreasonable because
they did not knock and announce their presence, and that the
officers used excessive force when they opened fire. The
Mendezes also brought claims for negligence under
California law.

    The district court ruled in favor of the plaintiffs on all
three claims under § 1983, granting nominal damages for the
unlawful entry and failure to knock and announce, and
roughly four million dollars on the excessive force claim. In
addressing the excessive force claim, the district court found
that the officers’ use of force at the time of the shooting was
reasonable, but under our circuit’s former provocation
doctrine, the officers were still liable for excessive use of
force, because the unlawful entry and the failure to knock
and announce provoked the circumstances giving rise to the
subsequent shooting.

    The district court refused to grant recovery under
California negligence law, based on its conclusion that
Conley and Pederson acted reasonably at the moment of the
shooting. The court believed that under then-current
California law, the relevant inquiry concerned the moment
of the shooting, not the totality of the circumstances
surrounding the shooting, including pre-shooting conduct.
Mendez v. County of Los Angeles, No. CV 11-04771-MWF,
2013 U.S. Dist. LEXIS 115099, at *92–93 (C.D. Cal. Aug.
13, 2013). If one were to consider the totality of the
circumstances, the district court determined, Conley and
                    MENDEZ V. CONLEY                       7

Pederson’s conduct was “reckless as a matter of tort law,”
and so negligent. Id. at *97.

     In issuing its ruling, the district court was aware of a
then-pending California Supreme Court decision, Hayes v.
County of San Diego, that might bear on this analysis, and
stated that if Hayes altered the analysis, it would alter its
judgment on its own motion. Hayes held that “tactical
conduct and decisions preceding the use of deadly force are
relevant considerations under California law in determining
whether the use of deadly force gives rise to negligence
liability.” Hayes v. County of San Diego, 57 Cal. 4th 622,
639 (2013). The district court, however, declined to modify
its judgment after Hayes was decided.

    The officers appealed the district court’s § 1983 ruling,
and the Mendezes cross-appealed its California law ruling.
We affirmed in part and reversed in part. On the unlawful
entry claim, we held that the officers violated the Fourth
Amendment by entering the residence; the officers had no
warrant, lacked consent to enter, and the circumstances did
not satisfy any of several emergency or exigency exceptions
to the Fourth Amendment prohibition on unreasonable
searches and seizures. The officers could not benefit from
qualified immunity, because at the time of the incident, case
law had clearly established that the officers’ entry was
unlawful. Mendez v. County of Los Angeles, 815 F.3d 1178,
1191 (9th Cir. 2016). We also held that the shooting was a
foreseeable consequence of the unlawful entry, and that the
district court should have awarded full damages on the
8                       MENDEZ V. CONLEY

unlawful entry claim under basic principles of proximate
cause. 1 Id. at 1195.

    On the knock and announce claim, however, we held that
though the officers had a constitutional duty to knock and
announce before entering, this duty had not been clearly
established with regard to the specific facts of this case. As
such, the officers were entitled to qualified immunity on this
claim, and we vacated the district court’s award of nominal
damages on it. Id. at 1191.

    Finally, on the excessive force claim, we upheld the
district court’s decision based on our circuit’s prior
provocation rule. We held that the officers’ unlawful entry
was reckless, at a minimum. Id. at 1194. And under the
provocation doctrine as established then in our precedent,
where an officer intentionally or recklessly provokes a
violent confrontation, and that provocation is itself an
independent Fourth Amendment violation, the officer was
then liable for a defensive use of force. Id. at 1193. We did
not address the state law negligence claim.

    The United States Supreme Court vacated our prior
decision and remanded this case to us for further
consideration. County of Los Angeles v. Mendez, 137 S. Ct.
1539 (2017). The Court disagreed with and reversed two
parts of our ruling. First, the Court held that the Ninth
Circuit’s provocation doctrine was “incompatible with [the
Court’s] excessive force jurisprudence” because it “uses
another constitutional violation to manufacture an excessive
    1
       We held that damages should be awarded jointly against both
Pederson—who did not enter the shack—and Conley—who did. A
person who is an integral participant in an unlawful search is jointly
liable, even if the person does not enter the residence. Mendez, 815 F.3d
at 1195. This conclusion still holds.
                    MENDEZ V. CONLEY                        9

force claim where one would not otherwise exist.” Id. at
1546. However, the Court noted that “plaintiffs can—
subject to qualified immunity—generally recover damages
that are proximately caused by any Fourth Amendment
violation.” Id. at 1548. And the Court noted that the
Mendezes could, in principle, still recover for “injuries
proximately caused by the warrantless entry.” Id. at 1548
(emphasis in original). But, in assessing our proximate
cause analysis, the Court held that we did not adequately
separate the proximate cause analysis for the unlawful
entry—on which the officers did not benefit from qualified
immunity—from the proximate cause analysis for the failure
to knock and announce—on which they did. Id. at 1549.

    On remand we must address whether the officers’
unlawful entry, as distinct from the unlawful mode of
entry—that is, the failure to knock and announce—was the
proximate cause of the Mendezes injuries. We hold that it
was. We also address the still remaining state law
negligence claims, and hold that California negligence law
provides an independent basis for recovery of all damages
awarded by the district court.

                              I

    In our prior ruling we held that the officers engaged in a
search by entering the Mendezes’ home. Mendez, 815 F.3d
at 1187. The officers did not have a warrant or consent and
did not satisfy any emergency or exigency conditions that
could make an entry lawful. Id. at 1187–91. The law on all
these points was clearly established at the time, so the
officers could not obtain qualified immunity for their
unlawful search. Id. at 1191. There is no reason to revisit
those conclusions on remand: We again hold that the officers
violated the Fourth Amendment by engaging in an
unconstitutional entry into the Mendezes’ home.
10                    MENDEZ V. CONLEY

    A § 1983 claim creates a species of tort liability, with
damages determined “according to principles derived from
the common law of torts.” Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 306 (1986). Such damages are
measured in terms of “compensation for the injury caused to
plaintiff by defendant’s breach of duty.” Id. Under this
analysis, we must first determine what act or omission
constituted the breach of duty, and then ask whether that act
or omission was the but-for and proximate cause of the
plaintiff’s injuries.

    The parties dispute which act or omission constituted the
breach of duty. The officers argue that the failure to get a
warrant before entering was the omission constituting the
breach. Framed in that way, the officers argue, the breach of
duty did not cause the Mendezes injuries because, had the
officers first gotten a warrant, the same sort of confrontation
and shooting still could have occurred.

    By contrast, the plaintiffs argue that the entry into the
shed was the act constituting the breach of duty. On this
framing of the issue, the officers’ breach of duty was the
cause in fact of the Mendezes’ injuries because, had the
officers not entered, the Mendezes would not have been
injured. For the reasons explicated below, we hold that on
either framing of the issue the officers’ unlawful behavior
was a proximate cause of the Mendezes’ injuries. But, as we
explain first, the plaintiffs’ framing of this issue is the correct
one. The officers’ framing of the issue conflates one of
several acts that would have discharged their duties under
the Fourth Amendment—getting a warrant—with an act
performed in violation of that duty—entering the residence.
Or, to put it another way, the officers’ argument
misconstrues the duty not to enter a home without a warrant
as a duty simply to get a warrant—overlooking the fact that
                     MENDEZ V. CONLEY                        11

absent a warrant, consent, or exigent circumstances, there is
a duty not to enter.

    To see why the plaintiffs’ account of the nature of the
officers’ duty is correct, we need look no further than the text
of the Fourth Amendment. The Fourth Amendment reads as
follows:

       The right of the people to be secure in their
       persons, houses, papers, and effects, against
       unreasonable searches and seizures, shall not
       be violated, and no Warrants shall issue, but
       upon probable cause, supported by Oath or
       affirmation, and particularly describing the
       place to be searched, and the persons or
       things to be seized.

    By its plain text the Fourth Amendment does two things.
First, the Fourth Amendment prohibits unreasonable
searches and seizures. See United States v. Jones, 565 U.S.
400, 404 (2012) (noting that a physical intrusion into a
property is a search under the Fourth Amendment). Second,
the Fourth Amendment specifies the conditions under which
a warrant can be issued.

    The Fourth Amendment protects not only a person’s
broad interests in privacy, but also, and specifically, a
person’s interest in being shielded from physical
governmental intrusions. See Jones, 565 U.S. at 406 (“[F]or
most of our history the Fourth Amendment was understood
to embody a particular concern for government trespass
upon the areas (‘persons, houses, papers, and effects’) it
enumerates.”); Florida v. Jardines, 569 U.S. 1, 5 (2013)
(noting that in addition to privacy interests, the Fourth
Amendment protects citizens interests in being free from
physical intrusions).
12                  MENDEZ V. CONLEY

    The Fourth Amendment is often referred to as imposing
a “warrant requirement.” See Patel v. City of Los Angeles,
738 F.3d 1058, 1071 (9th Cir. 2013). This way of stating
things is not entirely inaccurate, but it can be misleading.
The Fourth Amendment does not require officers to get
warrants. Rather, it requires that officers not conduct
“unreasonable searches and seizures.” The role of the
Warrant Clause of the Fourth Amendment is simply to
specify one set of conditions under which an entry into a
residence can be reasonable—that is, where the officers have
a warrant that satisfies the conditions articulated in the
Warrant Clause. That is not, however, the only way that an
entry can be reasonable. Officers can also enter with
consent, or under certain emergency or exigent
circumstances. See Michigan v. Clifford, 464 U.S. 287, 293
(1984) (“[A]ny official entry must be made pursuant to a
warrant in the absence of consent or exigent
circumstances.”). An entry into a residence that is not under
a warrant, that lacks consent, and that is not justified by
exigent circumstances or an emergency is unreasonable. Id.
Under such circumstances, the Fourth Amendment imposes
a duty on officers not to enter. And it is entry itself that
constitutes the breach of that duty.

    Similarly, an officer who wants to enter a property can
do so not only with a warrant but also with consent. But it
would be a mistake to conclude that an officer has a
freestanding duty to get consent. In normal circumstances,
if an officer does not have a warrant or consent or exigent
circumstances, the officer must not enter. Consent, much
like a warrant, changes an officer’s duties. It turns an
unlawful act into one that is lawful. But lawful entry remains
the key duty. For that reason, Justice Jackson explained in
McDonald v. United States: “Had the police been admitted
as guests of another tenant . . . they would have been legally
                     MENDEZ V. CONLEY                        13

in the hallways. Like any other stranger they could then spy
or eavesdrop on others without being trespassers . . . . [but
by unlawfully entering through a window] they were guilty
of breaking and entering—a felony in law and a crime far
more serious than the one they were engaged in
suppressing.” 335 U.S. 451, 458 (1948) (Jackson, J.,
concurring).

    That such duties between parties can change based on the
surrounding circumstances is a commonplace feature of law.
In tort law, for example, an act or omission can be a breach
of duty in one context, but not a breach of duty in another,
even if the act or omission itself has the exact same
propensity to cause harm. For example, when a person
operates a business and invites customers onto the property,
the business proprietor owes a duty to those customers to
make the premises safe. The business proprietor does not
owe a similar duty to a trespasser. Compare Restatement
(Second) of Torts § 333 (Am. Law Inst. 1981) (trespassers),
with id. § 343 (invitees). So, if a property owner negligently
leaves a hazard on the property, the owner can be liable to
the invitee, but not liable to the trespasser. The same act and
resulting injury is the basis for liability in one case, but not
in the other. The difference is only the presence or absence
of a duty owed to another, which makes the act tortious or
not. Similarly, a warrant functions to change what duties an
officer owes to a civilian. In a case where the officers
procure a valid warrant, their defense relates not to
causation, but to the fact that because they had a warrant
their entry was privileged and so not a breach of any duty
owed to the plaintiffs.

    In summary, for the purposes of § 1983, a properly
issued warrant makes an officer’s otherwise unreasonable
entry non-tortious—that is, not a trespass. Absent a warrant
14                   MENDEZ V. CONLEY

or consent or exigent circumstances, an officer must not
enter; it is the entry that constitutes the breach of duty under
the Fourth Amendment. As a result, the relevant counter-
factual for the causation analysis is not what would have
happened had the officers procured a warrant, but rather,
what would have happened had the officers not unlawfully
entered the residence.

                              II

    In light of the foregoing analysis, we next determine
whether the unlawful entry was the cause in fact and the
proximate cause of the Mendezes’ injuries. See White v.
Roper, 901 F.2d 1501, 1505 (9th Cir. 1990). Here, as the
district court correctly found, there is no question that the
unlawful entry was the cause in fact of the injuries. If the
officers had not entered, Mr. and Ms. Mendez would not
have been shot while lying in bed. That is the quick end of
analysis of cause in fact.

    Turning to the more difficult question of proximate
cause, we hold that the officer’s unlawful entry proximately
caused the Mendezes’ injuries. The proximate cause
question asks whether the unlawful conduct is closely
enough tied to the injury that it makes sense to hold the
defendant legally responsible for the injury. W. Page Keeton
et al., Prosser and Keeton on Torts § 42 (5th ed. 1984).
Proximate cause is “said to depend on whether the conduct
has been so significant and important a cause that the
defendant should be legally responsible.” Id. It is a question
of “whether the duty includes protection against such
consequences.” Id. We have held that “the touchstone of
proximate cause in a § 1983 action is foreseeability.”
Phillips v. Hust, 477 F.3d 1070, 1077 (9th Cir. 2007),
vacated on other grounds, 555 U.S. 1150 (2009). The
Supreme Court has observed that “[p]roximate cause is often
                     MENDEZ V. CONLEY                          15

explicated in terms of foreseeability or the scope of the risk
created by the predicate conduct.” Paroline v. United States,
134 S. Ct. 1710, 1719 (2014). “A requirement of proximate
cause thus serves, inter alia, to preclude liability in situations
where the causal link between conduct and result is so
attenuated that the consequence is more aptly described as
mere fortuity.” Id.

    Whether understood in terms of the scope of the risk or
in terms of foreseeability, the findings of the district court
make clear that the officers’ entry into the structure was here
the proximate cause of the Mendezes’ injuries. This is not a
case where one can say that the injury to the Mendezes was
a mere fortuity. The injury followed in a normal course as a
result of the unlawful acts of the officers.

    First, as a general matter, the risk of injury posed by the
entry of an armed stranger into a residence is one of the
reasons the Fourth Amendment prohibits entry except under
defined specific conditions. There is historical evidence
suggesting that the point of the Fourth Amendment’s
prohibition against trespass into homes was in part to prevent
damage done by the trespassers.

     For instance, attendees at the Boston Town Meeting of
1772 raised concerns about damage done to chattels after
searches. See Maureen E. Brady, The Lost “Effects” of the
Fourth Amendment: Giving Personal Property Due
Protection, 125 Yale L.J. 946, 991 (2016). And anti-
federalists advocated for constitutional protections against
searches because otherwise the government could be free to
damage personal property when searching. Id. These
historical sources suggest that the Fourth Amendment was
ratified not just to protect privacy interests, but also out of a
concern that governmental trespass to property could lead to
subsequent physical harms. In modern times, the same
16                  MENDEZ V. CONLEY

concern was voiced in Justice Jackson’s concurrence in
McDonald. Justice Jackson was concerned that unlawful
entries can invite precisely the sort of violence that occurred
here, where “an officer seeing a gun being drawn on him
might shoot first.” McDonald, 335 U.S. at 460–61.

    We are not alone in recognizing that an armed officer’s
high-alert entry can foreseeably lead the officer to use deadly
force in response to a misapprehended threat. For instance,
in Attocknie v. Smith, a police officer unlawfully entered a
house and shot the son of a person the officer hoped to
apprehend. 798 F.3d 1252, 1255 (10th Cir. 2015). There,
like here, the shooting happened only moments after the
entry. Id. at 1254. The Tenth Circuit held that “a reasonable
jury could determine that the unlawful entry was the
proximate cause of the fatal shooting of [the victim].” Id. at
1258.

    Looking to other cases involving unlawful entry—
including burglary—can be instructive in assessing the
proximate cause question. As evidenced by Justice
Jackson’s concurrence in McDonald, analogizing the acts of
officers who unlawfully enter to those of burglars is apt.
335 U.S. at 458. More recently, the Supreme Court has
noted that “[b]urglary is dangerous because it can end in
confrontation leading to violence.” Sykes v. United States,
564 U.S. 1, 9 (2011), overruled on other grounds by Johnson
v. United States, 135 S. Ct. 2551 (2015). And it has also
noted that burglary foreseeably creates the “possibility of a
face-to-face confrontation between the burglar and a third
party—whether an occupant, a police officer, or a
bystander.” James v. United States, 550 U.S. 192, 203
(2007), overruled on other grounds by Johnson v. United
States, 135 S. Ct. 2551 (2015). Stated another way, unlawful
entry invites violence.
                     MENDEZ V. CONLEY                         17

    Looking to the factual findings of the district court that
bear on the proximate cause analysis only reinforces the
conclusion that the entry was the proximate cause of the
Mendezes’ injuries. Here, the district court found that the
officers entered with weapons drawn. Mendez, 2013 U.S.
Dist. LEXIS 115099, at *11. The officers were aware, or
should have been aware that the Mendezes were residing in
the building in Hughes’ backyard. Id. at *34–35. The
officers were on alert, believing themselves to be searching
for an armed individual. Id. at *11. And as the district court
correctly observed, in light of the protections afforded by the
Second Amendment, which are at their height where defense
of one’s home is at stake, see District of Columbia v. Heller,
554 U.S. 570, 628–29 (2008), it can be expected that some
individuals will keep firearms in their homes to defend
themselves against intruders. Id. at *87–88. Under these
conditions, armed officers entering a house will necessarily
present a substantial risk to anyone in the house they
perceive as being armed. It is all the more important that
officers in such cases abide by their duties under the Fourth
Amendment.

    Important social interests are served by minimizing
interactions between armed police officers on high alert and
innocent persons in their homes, precisely because such
interactions can foreseeably lead to tragic incidents where
innocent people are injured or killed due to a split-second
misunderstanding. One way the Constitution serves these
interests is by adopting a rule that restricts officer entry into
a residence except in certain limited circumstances. And it
is obviously foreseeable that fewer tragic incidents like this
one would occur under an enforced regime where officers
will not enter homes without sufficient justification, as
compared to one where officers enter without adequate
justification. Especially where officers are armed and on
18                  MENDEZ V. CONLEY

alert, violent confrontations are foreseeable consequences of
unlawful entries.

    The officers here suggest that any threat could be
diffused by requiring officers to knock and announce, and
hence, they argue that only the failure to knock and
announce—on which the officers have qualified
immunity—and not the entry itself was the proximate cause
of the Mendezes’ injuries. This argument is fallacious.
First, the injuries would have been equally avoided had the
officers not entered unlawfully without warrant or consent
or exigent circumstances. And had officers knocked and
announced, they still could not have lawfully entered absent
consent or exigent circumstances or a warrant. The officers’
argument ignores the fact that “it is common for injuries to
have multiple proximate causes.” Staub v. Proctor Hosp.,
562 U.S. 411, 420 (2011). Here, both the entry and the
failure to knock and announce were proximate causes of the
Mendezes’ injuries. Officers cannot properly escape
liability when they breach two duties, each breach being
necessary for the harm to occur, just because one of the
duties was subject to qualified immunity. That would lead
to the absurd result that an officer who breaches only one
duty is liable, but that an officer who breaches multiple
duties is not.

    Consider a scenario like the one in this case, but where
Mr. Mendez is deaf. Suppose that officers do knock and
announce, but failing to catch Mr. Mendez’s attention,
proceed to unlawfully enter. In such a case, where a deaf
Mr. Mendez responded the same way as here, unaware that
the people entering were law enforcement officers, the
officers would still be liable as having violated Mr.
Mendez’s Fourth Amendment rights in a way that
proximately caused his physical injuries. To shield from
                    MENDEZ V. CONLEY                        19

liability an officer who additionally breached the knock and
announce requirement would be manifestly unjust.

    Further, the officers’ legal position in the earlier appeal
was that they had no duty to knock and announce before
entering the inhabited shed, as they had done so at the door
of the main house. We rejected that position, but agreed that
there was no clearly established law requiring a second
knock and announce at the doorway of a second occupied
building on the same property. Mendez, 815 F.3d at 1192–
93. On the officers’ view of the law, they had no knock and
announce duty. But they still had a duty not to enter
unlawfully, and that breach of duty could have foreseeably
led to the injury that occurred. This conclusion should not
change because we rejected the officers’ legal position on
the knock and announce requirement, yet held that they were
justified in holding it because the governing law at the time
of the incident was not clearly established.

    Second, even if an officer knocks and announces his or
her presence, or seeks consent to enter, a homeowner may
reasonably still wish that the officer not enter, especially in
circumstances like this, where the officer has a weapon
drawn and is on alert. The reason why is obvious. An
innocent homeowner reasonably may believe that allowing
an agitated officer to enter the residence will substantially
increase the risk that a person, pet, or property inside might
be harmed. Police officers rightly remind the public that
they are required to make split-second decisions in very
difficult situations. See Tennessee v. Garner, 471 U.S. 1, 19
(1985). These split-second decisions cannot in every case
be made reliably so as to avoid harm to innocents. But these
imperfect life-or-death decisions demonstrate that entry by
an officer, on alert, with weapon drawn, can foreseeably
result in shooting injuries where the officer mistakes an
20                  MENDEZ V. CONLEY

innocent implement for a weapon. Entry poses a foreseeable
and severe risk only partly mitigated by knocking and
announcing. Under circumstances like those presented here,
the safe course for the public and the one prescribed by the
Fourth Amendment, is for officers to remain outside, unless
or until they have a warrant or consent or exigent
circumstances arise.

                            III

    Even if we were to accept the officers’ framing of the
issue and treat the failure to get a warrant rather than the
entry as the basis of the breach of duty, we would reach the
same conclusion regarding proximate cause. To procure a
warrant an officer must have probable cause. The probable
cause requirement erects a barrier against police intrusions
and the associated risk of harm, except where the intrusions
are adequately justified. The requirement thus represents the
balance we have struck as a society in defining when it is
permissible for an officer to impose a risk of harm on
innocent members of the public in service of the competing
social need to have effective law enforcement. But where
probable cause is lacking, imposing that risk cannot be
justified.

    Here, the officers most likely lacked probable cause to
believe that O’Dell was in a shed that was known, or
reasonably should have been known, to belong to the
Mendezes. As we noted in our prior decision in this case,
“O’Dell was supposedly spotted riding a bicycle in front of
Hughes’ house. Unless he was riding in circles, he would
have passed the house long before the officers arrived. The
original group of officers recognized this, as some of them
went to another house to look for O’Dell.” Mendez, 815 F.3d
at 1188 n.5. Under the circumstances the officers had no
more reason to believe that O’Dell was on Hughes’ property
                        MENDEZ V. CONLEY                             21

than that he was on any other property reachable by bike
within the time between the informant’s report and the
arrival of the police. 2 And although the officers came across
a bike parked in front Hughes’ home, there was nothing to
suggest that the bike was or resembled the bike O’Dell was
riding. Seeing a bike after a suspect was seen riding a bike
provides no more probable cause than seeing a car after a
suspect was seen driving a car. Further attenuating probable
cause is that the only reason given for believing O’Dell was
in the Mendezes’ residence is that he was not in the main
house, and the officers thought they heard someone running
in that house.

    Moreover, even if a magistrate could have properly
concluded that there was probable cause that O’Dell could
be located in the Mendezes’ residence—which we doubt—
requiring officers to get a warrant before entry serves
important interests. Consider the steps in the process of
gaining a warrant. Officers must first gather information that
satisfies the conditions set forth in the Warrant Clause of the
Fourth Amendment. That process invites officers to ask
whether they have sufficient justification for entering a
property. Then the officers must seek out an impartial
magistrate who will assess whether the officer’s proffered
justifications are adequate. Taken together, these two
processes play an important protective role. Among other
things, they require officers carefully to consider whether
they are justified in imposing a known risk on third parties

    2
       Sergeant Minster—who led the operation—stated that the
informant said that he had seen someone resembling O’Dell leaving the
Hughes residence by bike. There is some reason to believe that this was
not O’Dell at all. And even if it was, under those circumstances, it is
actually less likely that O’Dell was in Hughes’ house than that he was in
some other randomly selected house in the area. The officers had no
reason to believe that O’Dell would return to a house he had just left.
22                  MENDEZ V. CONLEY

who might be inside the residence. They also force officers
to reflect on the circumstances facing them. This slower and
more deliberative process helps secure the rights and
interests of civilians to be free from unnecessary harms to
their property and their person. When a judicial officer is
interposed between the police and civilians, “potentially
fatal decisions[s] . . . [are] taken away from those on the
scene, whose judgment may be clouded by an
understandable, but perhaps misguided sense of urgency.”
Alexander v. City & County of San Francisco, 29 F.3d 1355,
1368–69 (9th Cir. 1994) (Kozinski, J., concurring); see also
Steagald v. United States, 451 U.S. 204, 212 (1981). Here,
“[b]y failing to take this constitutionally-required step, the
officers short-circuited the built-in safeguard of the warrant
requirement.” Alexander, 29 F.3d at 1368–69.

    The importance of this slower and more deliberative
process is on display here. We concluded previously that
there were no exigent circumstances here justifying an
immediate entry. Mendez, 815 F.3d at 1189–90. It is likely
that if the officers had gone through the constitutionally
required warrant procedures before entering, they would
have remembered that the Mendezes’ lived in the building
behind the Hughes’ house, and taken account of the risks of
armed entry into an inhabited building.              In such
circumstances a responsible officer would likely have taken
additional steps to prevent avoidable injuries to innocent
third parties. The process of having to collect information,
seek permission for entry from a magistrate, and justify that
entry, most clearly serves important social interests where a
warrant request is denied because it creates a barrier
protecting persons from unnecessary harm at the hands of
police. But this process also protects individuals even when
the warrant is granted, because it serves an important
purpose of encouraging considered reflection before officers
                     MENDEZ V. CONLEY                        23

take action. Here, the failure to engage in this deliberative
process foreseeably led to the Mendezes’ injuries.

                              IV

    The officers also argue that their entry was not the
proximate cause of the Mendezes’ injuries because Mr.
Mendez’s action of moving the gun so that it was pointed in
the direction of the officers was a superseding cause of the
injuries. We disagree. To be sure, officers are free from
liability if they can show that the behavior of a shooting
victim was a superseding cause of the injury. A superseding
or intervening cause involves a shifting of responsibility
away from a party who would otherwise have been
responsible for the harm that occurs. Keeton et al., supra,
§ 44. If a resident sees that an officer has entered and
intentionally tries to harm the officer, who in turn draws his
weapon and shoots, the resident’s intentional action would
be a superseding cause of the injury. See, e.g., Bodine v.
Warwick, 72 F.3d 393, 400 (3d Cir. 1995) (noting that if a
suspect were to shoot at persons known to be officers, the
suspect’s act would be a superseding cause absolving the
officers of liability for harm caused as a result of an unlawful
entry).

    However, the hypothetical situation imagined in Bodine
has no purchase here. The district court found that Mr.
Mendez was napping on a futon with a BB gun by his side
when the officers entered. Mendez, 2013 U.S. Dist. LEXIS
115099 at *13. Moments after the officers entered, Mr.
Mendez moved the BB gun. Id. at *14. Almost immediately
the officers began to fire upon the Mendezes. Id. at *15. Mr.
Mendez had no idea that the persons entering his home were
police officers, making this situation wholly unlike the
hypothetical posed in Bodine. And Mr. Mendez did not
24                  MENDEZ V. CONLEY

deliberately aim at the intruding officers; he was moving the
gun, seemingly so he could rise.

    Under basic tort principles, something is a superseding
cause only if it is “a later cause of independent origin that
was not foreseeable.” Exxon Co. v. Sofec, 517 U.S. 830, 837
(1996). A victim’s behavior is not a superseding cause
where the tortfeasor’s actions are unlawful precisely because
the victim foreseeably and innocently might act that way.
See Restatement (Second) of Torts § 449 (Am. Law Inst.
1981) (noting that subsequent events that explain why the
act was negligent are not superseding causes); Farr v. N.C.
Mach. Co., 186 F.3d 1165, 1170 (9th Cir. 1999) (noting that
where “the risk that materialized was the one threatened by
the [tortious act],” acts of the victim are not superseding
causes). So if an officer has a duty not to enter in part
because he or she might misperceive a victim’s innocent acts
as a threat and respond with deadly force, then the victim’s
innocent acts cannot be a superseding cause.

    As explained above, among the reasons why the Fourth
Amendment erects a barrier to entry is that an officer might,
due to a mistaken assessment of a threat, harm a person
inside the residence. Persons residing in a home may
innocently hold kitchen knives, cell phones, toy guns, or
even real ones that could be mistakenly believed by police
to pose a threat. The possibility of misperceiving a threat is
among the reasons why entry into a home by armed police
officers with weapons drawn is dangerous. In such cases,
the innocent acts of a homeowner in moving an ordinary
item in an ordinary way cannot properly be viewed as a
superseding cause.

    Moreover, under basic tort principles, foreseeability is
looked at retrospectively when assessing whether an
intervening event is a superseding cause. And an event will
                    MENDEZ V. CONLEY                      25

be a superseding cause only if it is extraordinary in
retrospect. See Restatement (Second) of Torts § 443 cmts.
b, c (Am. Law Inst. 1981) (noting that only an act that is
abnormal or extraordinary in retrospect serves as a
superseding cause). Here, there is nothing extraordinary
about the possibility that officers might mistake an innocent
implement for a threat. Nationally prominent events in
publicized police shootings show that such a possibility is
sadly all too common.

    Nothing about Mr. Mendez’s innocent actions warrants
shifting responsibility for the subsequent shooting injuries
away from the officers and to the injured victim. And this is
precisely what the district court correctly held. “Mr.
Mendez’s ‘normal efforts’ in picking up the BB gun rifle to
sit up on the futon do not supersede Deputies Conley and
Pederson’s responsibility.” Mendez, 2013 U.S. Dist. LEXIS
115099 at *87.

                             V

    We next turn to the plaintiffs’ California negligence
claim. We did not address this claim in our prior ruling, nor
did the Supreme Court address the California law claim in
its decision. We now resolve the Mendezes’ cross-appeal
and hold that under the California Supreme Court’s decision
in Hayes v. County of San Diego, judgment should be
entered in the Mendezes’ favor on the California negligence
law claim. The district court did not grant relief under
California negligence law because the court believed that
under then existing California law, negligence is assessed
based only on the state of affairs at the moment of the
shooting, and not in light of pre-shooting conduct. Mendez,
2013 U.S. Dist. LEXIS 115099 at *93. But after the district
court entered judgment the California Supreme Court
clarified that “law enforcement personnel’s tactical conduct
26                      MENDEZ V. CONLEY

and decisions preceding the use of deadly force are relevant
considerations under California law in determining whether
the use of deadly force gives rise to negligence liability.”
Hayes, 57 Cal. 4th at 639. 3

    Here, the district court’s findings compel the conclusion
that the officers were negligent under California law. The
district court specifically found that the “totality of Deputies
Conley and Pederson’s conduct was reckless as a matter of
tort law,” and that “the conduct rose beyond even gross
negligence.” Mendez, 2013 U.S. Dist. LEXIS 115099, at
*97, *82; see also Mendez, 815 F.3d at 1194 (“the record
here bears out Conley and Pederson’s recklessness”). It is
beyond negligent for officers to enter a dwelling with guns
drawn and without announcing their presence, especially
when they are on notice that the dwelling is occupied by a
third party, unless there are special circumstances that might
justify such action. No such special circumstances were
present in this case, and it is foreseeable that such reckless
behavior can lead to tragic accidents like the one that
occurred here.


     3
       The district court had told the parties that it would revisit its
judgment in light of Hayes, which was pending at the time. The plaintiffs
asked the court to do so, but the court refused on procedural grounds
because the Mendezes filed a document styled as a “request” rather than
styled as a motion. We review a district court’s procedural
determinations regarding local rules for abuse of discretion. Kalitta Air
L.L.C. v. Cent. Tex. Airborne Sys. Inc., 741 F.3d 955, 957 (9th Cir. 2013).
Here the district court told the parties that it would revisit its judgment
on its own motion if appropriate in light of Hayes. In light of this
representation to the parties, and the obvious relevance of Hayes, the
district court should have addressed the issue on its own without
prompting by the plaintiffs. To then dismiss the plaintiff’s request on
procedural grounds was an abuse of discretion, because the plaintiffs
were reasonably relying on the district court’s representation.
                    MENDEZ V. CONLEY                       27

    We note that the officers’ failure to knock and announce
is an especially dangerous omission. Under California law,
the officers here are not entitled to qualified immunity for
that lapse. Venegas v. County of Los Angeles, 63 Cal. Rptr.
3d 741, 755 (Ct. App. 2007); Robinson v. Solano County,
278 F.3d 1007, 1016 (9th Cir. 2002). Under California law,
unlike under 42 U.S.C. § 1983, the failure to knock and
announce can be a basis of liability. The officers knew or
should have known about the Mendezes’ presence. Yet they
decided to proceed without taking even simple and available
precautions, including announcing their presence, which
could have protected the Mendezes from the severe harm
that befell them.

    The officers argue that we earlier held that they behaved
reasonably in failing to knock and announce. We did not.
We held that under federal law applicable to the § 1983
claim, the officers had qualified immunity because it was not
clearly established at the time that, under the circumstances,
the failure to knock and announce was a federal
constitutional violation. Mendez, 815 F.3d at 1192. Under
the evolving precedent of qualified immunity, officers can
receive qualified immunity under 42 U.S.C. § 1983 for acts
that are negligent under state common law. See Robinson,
278 F.3d at 1016 (holding that qualified immunity applied to
claims under § 1983, but not to state law negligence claims).
Applying the “clearly established” requirement of the
qualified immunity analysis to all state common law
negligence claims would effectively eviscerate state
common law. See Johnson v. Bay Area Rapid Transit Dist.,
724 F.3d 1159, 1171 (9th Cir. 2013) (“the doctrine of
qualified immunity does not shield defendants from state law
claims”). And here it would make meaningless the
California Court of Appeals’ express holding that there is no
qualified immunity for state law negligence claims. See
28                  MENDEZ V. CONLEY

Venegas, 63 Cal. Rptr. 3d at 755. We decline to apply a
doctrine that has evolved in the narrow and unique context
of § 1983 claims in a way that would undermine state law
that expressly departs from the federal standard concerning
qualified immunity.

    Finally, the defendants contend that the negligence claim
is barred by two kinds of state law statutory immunity. First,
they argue that California Government Code section 821.6
immunizes the officers from liability. Section 821.6
provides: “A public employee is not liable for an injury
caused by his instituting or prosecuting any judicial or
administrative proceedings within the scope of his
employment, even if he acts maliciously and without
probable cause.” Cal. Gov’t Code § 821.6. And they claim
that this immunity has been extended to protect officers
engaged in investigations leading up to formal proceedings.
We have rejected similar arguments in the past. Sharp v.
County of Orange, 871 F.3d 901, 920–21 (9th Cir. 2017)
(“[t]he ‘prosecutorial’ immunity under Cal. Gov. Code
§ 821.6 does not apply because it is limited to malicious-
prosecution claims.” (citing Sullivan v. County of Los
Angeles, 12 Cal. 3d 710, 117 (1974))); Blankenhorn v. City
of Orange, 485 F.3d 463, 467 (9th Cir. 2007) (holding that
section 821.6 immunity applies only to acts done in
furtherance of an investigation into a crime).

    Second, the officers also claim immunity under
California Government Code section 820.2, which provides
immunity to public employees from liability for injuries
“resulting from his act or omission where the act or omission
was the result of the exercise of discretion vested in him,
whether or not such discretion be abused.” Cal. Gov’t Code
§ 820.2. However, the California Supreme Court has held
that this immunity applies only to policy decisions, not to
                       MENDEZ V. CONLEY                              29

operational decisions like the decision to enter the Mendez
residence here. See Caldwell v. Montoya, 10 Cal. 4th 972,
981 (1995); see also Sharp, 871 F.3d at 920. Hence, section
820.2 immunity does not apply.

                                  VI

    We affirm the district court’s holding that officers
Conley and Pederson are liable for violations of the
Mendezes’ Fourth Amendment rights. On remand, the
judgment shall be amended to award all damages arising
from the shooting in the Mendezes’ favor as proximately
caused by the unconstitutional entry, and proximately caused
by the failure to get a warrant. Judgment shall also be
entered in the Mendezes’ favor on the California negligence
claim for the same damages arising out of the shooting. 4

    AFFIRMED IN PART, REVERSED IN PART.




    4
     Plaintiffs are also entitled to reasonable attorney fees. 42 U.S.C.
§ 1988.

    Costs on appeal shall be borne by the defendants.
