County of Los Angeles v. Mendez, the Supreme Court’s recent decision rejecting shooting victims’ excessive force claims, has been written off as yet another case in which police violence has no civil rights consequences. The Court found that the deputies who shot Jennifer Garcia and Angel Mendez fifteen times used reasonable force because Mendez was holding a BB gun. But the deputies barged in on Garcia and Mendez while they were napping on a futon in their home, and Mendez grabbed his BB gun to stand up and steady himself. The Court remanded the case with instructions to consider whether the defendants’ warrantless entry into the plaintiffs’ home, a constitutional violation not entitled to qualified immunity, was the proximate cause of the deputies’ deadly force. Justice Alito, writing for the Court, advised plaintiffs that “there is no need to dress up every Fourth Amendment claim as an excessive force claim.” The invitation to attempt recovery through an alternative legal theory could prove revolutionary for victims of police-involved shootings. So long as they can rely on common law tort principles to show that their injuries were proximately caused by an earlier constitutional violation, they might avoid excessive force precedent’s insurmountable hurdles, which, in recent cases like Plumhoff v. Rickard and Brosseau v. Haugen, have sanctioned nearly all forms of law enforcement deadly force. If plaintiffs can recover damages for shootings, then 42 U.S.C. § 1983 might once again serve some real deterrent purpose, forcing police officers to think before they shoot.
118 Colum. L. Rev. Online 48 (2018)