Civil Liberties How Appealing LASD

Ninth Circuit Rules Sheriff’s Deputies “Recklessly” Violated 4th Amendment Rights of Shed-Dwelling Couple in 2010 Shooting

Celeste Fremon
Written by Celeste Fremon

In a 29-page opinion handed down on Friday, July 27, the Ninth Circuit Court of Appeals sided with a couple that was, at the time of a near-fatal incident, living in a Lancaster shed.  In doing so, the Ninth decided against a team of Los Angeles County Sheriff’s deputies, in a case that has already gone to the U.S. Supreme Court.

The three U.S. Circuit Judges, Ronald M. Gould and Marsha S. Berzon, and U.S. District Judge George Caram Steeh III, said that deputies Christopher Conley and Jennifer Pedersen violated the couple’s Fourth Amendment rights when they burst  unannounced into the couple’s shed and, seeing a BB gun, began shooting.

There is, of course, a lot more to the story.

Here’s the background.


To enter or not to enter

On October 1, 2010, Angel Mendez, who was 30 at the time, and Jennifer Garcia, then 27, and five months pregnant, were asleep on a futon in a one room plywood structure—a shed really—that Paula Hughes, a friend Mendez had known since high school, had been letting them occupy. As the justices noted in their ruling, from the outside, there were several obvious elements suggesting the shed was likely inhabited. A portable air conditioner was installed on one side of the structure. An electric cord ran to the shed, as did a hose.

The structure had no windows, but its entrance included a hinged wooden door, and a hinged screen door that opened to the outside. A white gym storage locker that contained clothes, coats and other possessions, was located a few feet to northeast of the shack, which was in turn around 30 feet from Paula Hughes’ house.

At the time the incident occurred, the couple was struggling financially, and usually one step above homeless.  Yet they had been living on the Hughes property for around ten months in the shack that Angel Mendez had constructed, and not suspected of any crime.

On that day, members of the “COPS HIT” team (the unfortunately conceived acronym for “Community-Oriented Policing Services High-Impact Team”) reportedly entered the shed without knocking, calling out, or identifying themselves.

They had come to the shack looking for Ronnie O’Dell, a large white guy who had gone AWOL from his court-ordered drug rehab. The parolee, who had a string of drug and other minor arrests, reportedly did not have violence on his record. But the COPS HIT team had gotten a tip that someone looking like O’Dell might have been seen riding a bike near or in front of Hughes’ house. But it might not have been Hughes. In any case, he was gone now.

Three members of the  team, including deputies and the team supervisor, Sergeant Greg Minister, pounded on the door of Hughes’ house and demanded entry, where they found neither O’Dell nor any drugs.

Two more deputies, Christopher Conley and Jennifer Pedersen, were sent to the back of the Hughes residence, then when the house was cleared the two proceeded to clear the rest of the property, which included three small storage sheds and the approximately 7X7 foot structure where the Mendez couple lived.

When Conley and Pedersen approached the screen door of the shack, they did not knock, call out, identify themselves or in any way warn the couple of their presence,  before entering. Nor did the deputies have a warrant.

Although Deputy Pedersen testified he felt no fear when he stood outside the shed, where the screen door was open, and the wooden door closed.  When he rapidly opened the wooden door, and pulled aside a blue blanket that was draped inside the door frame, his entrance woke the sleeping couple.  Mendez, who had a BB gun beside him on a futon, which he reportedly kept to shoot rats, picked up the gun attempted to move it to the ground, according to Mendez’ later testimony.

Deputy Pedersen said otherwise, and testified that the gun was pointed his direction.


Who is responsible?

Seeing the BB gun, within seconds of entry, Pedersen, with Conley following, unloaded a total of fifteen bullets into Angel Mendez and Jennifer Garcia, who is now Jennifer Mendez, since the two have subsequently married.

Angel Mendez was shot approximately ten times. He was critically injured, and lost much of his leg below the knee as a consequence of the shooting. He faces substantial ongoing medical expenses, the judges noted. Jennifer Mendez was shot in the upper back and left hand. The back bullet pierced and broke her collar bone. (She did not, however, lose her five-month pregnancy.)

“The officers’ unlawful entry was reckless, at a minimum,” Judge Gould wrote for the panel. And while the use of force might have been reasonable on its face, “…under the provocation doctrine,” he wrote, citing additional case law, “where an officer intentionally or recklessly provokes a violent confrontation, and that provocation is itself an independent Fourth Amendment violation.”

Thus “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.”

Furthermore, stated the ruling, “officers did not have a warrant or consent and did not satisfy any emergency or exigency conditions that could make an entry lawful.”

Instead, officers “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,” Gould wrote.


The winding legal road

This was not the first time the case had been to the Ninth Circuit.

On August 13, 2013, Mendez and Garcia Mendez were awarded $4 million in a four-day, no-jury trial before U.S. District Judge Michael Fitzgerald.

The district court ruled that the COPS HIT team violated Mendez and Garcia’s Fourth Amendment rights when they entered the shack without a warrant, and without knocking and announcing.

The deputies had argued that the building did not appear inhabitable. But Judge Fitzgerald ruled that the officers could not “reasonably” have believed the shack to be uninhabited, as there were signs the structure was occupied, including the air conditioning unit and a clothes locker.

In addition, Sergeant Greg Minster, who was the supervisor of the team, testified during the trial that he told the two deputies before their search that a man named Angel and his pregnant girlfriend lived in a shed in Hughes’ backyard.

“The multiple indicia of residency,” Fitzgerald wrote in his 61-page findings of fact, “including being told that someone lived on the property, means that the conduct rose beyond even gross negligence. And it is inevitable that a startling armed intrusion into the bedroom of an innocent third party, with no warrant or notice, will incite an armed response. Any other ruling would be inconsistent with the Second Amendment, as discussed below.”

The Ninth Circuit Court of Appeals agreed with the district court, ruling that the deputies initiated “a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable.”

The county’s lawyers next took their appeal to the U.S. Supreme Court.,

At the time, as WLA reported, the LASD’s deputies union, along with the county’s legal team, argued that the appeals court’s ruling endangered police officers.

“The Ninth Circuit’s ‘provocation’ rule puts the lives of officers at mortal risk by imposing civil liability for a reasonable use of force,” the county’s attorney’s argued. “An officer who has not used excessive force but who has nevertheless otherwise violated an individual’s constitutional rights must refrain from defending himself even if his life is threatened or be held financially liable…”


SCOTUS decides—sort of

The Supremes vacated the Ninth’s ruling, mainly objecting to the above-mentioned “provocation rule,” and, in a unanimous judgement, SCOTUS remanded the case back to the appellate court for a rethink of “provocation” and other parts of the Ninth’s original ruling.

On Friday, everyone received the requested reconsidered ruling that, in its 29 pages included the full text of the Fourth Amendment to the U.S. Constitution in case anyone had forgotten.

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.

The panel concluded that, on remand, “the judgment shall be amended to award all damages arising from the shooting in the plaintiffs’ favor.”

The opinion also stated that the Mendezes are entitled to recover damages under California negligence law.


Post Script

In case you’re interested, as we inevitably are, Ronald Gould, located in Seattle, Marsha Berzon, San Francisco, and George Caram Steeh III, a Senior U.S. District Judge for the Eastern District of Michigan, are all Bill Clinton appointees.

(We generally find it uncommon for all three on an appeals panel to be appointed by the same U.S. President, but this time the that’s what the legal slot machine produced.)

Oh, and U.S. District Court Judge Michael Fitzgerald, who presided over the federal trial in this case is an appoint of President Barak Obama


Photo of 2010 Mendez shed courtesy of the Los Angeles County Sheriff’s Department


Editor’s Note

This story was corrected and expanded on July 31, 2018, at 5:30 p.m..

Also…

Those readers interested in additional information on the case might enjoy reading Judge Fitzgerald’s extensive and detailed findings of fact, which includes much of the points of view of both plaintiffs and defendants.

Then….if you want to go still farther,  you can read the trial  brief by defendants Christopher Conley and Jennifer Pedersen here.

 After that,  read the trial brief by plaintiffs Angel Mendez and Jennifer Lynn Garcia here.

15 Comments

  • Pretty standard witness la writing. Upon merely seeing a b.b. gun the Deputies decided to open fire. Which later turns into , upon the Deputies bursting into the obviously inhabited apartment (is that a picture of the bungalow at the top of the story? Might be nice to clear that up) Mendez soberly and judically decided to place the b.b. gun on the ground, because of course, that’s why you sleep with a gun right? In case anyone comes in unannounced you can quickly place it on the ground.
    Of course the “Deputies said otherwise” but witness la just isn’t into that other side of the story thing, so why bother with that. Btw I’m not saying this is a good shooting, but don’t you think there is a duty to at least mention the other side of the story? SCOUTS seemed to think so, this story was pretty awful, even by witness la standards.

    • @ Kong: The worst thing that could happened would have been loss of life by either the deputies or the Mendez couple. The nation’s highest court SCOTUS unanimously directed the Appellate Court to basically review the provacation rule among other points. You should direct your discontent to SCOTUS instead of Celeste and WLA.

      • Citizen, you seem a little confused, I don’t blame you, considering the way the story was presented , more like propaganda than news.

  • Maj Kong, No, there is no duty to mention the other side of the deputies. We all know what the deputies pulled out of their ass. What they always do – we saw something and feared for our life. I know you are not saying it was a “good shooting,” but you are also are not saying it was a bad shooting. They violated this couple’s constitutional rights, two people were shot and one lost part of his leg. Someone f&*&(ed up. Admit it. And, its costing us too much money to keep covering these trigger happy, glorified security guard cowboys. And, the union cries that the ruling endangers officers? Say what? Do not violate anyone’s constitutional rights, period. If you can’t do your job within those parameters, move on.

    • Cf ,I knew this would get Celeste to hit that “contacts” button and get her little attack chihuahua back in action. “There is no duty to mention the other side” girl, you just came up with what should be Celeste’s new motto. Gotta give you credit for that one. Witness la- There is no duty here to mention the other side. Great stuff

  • Shouldn’t the county go after the homeowners as well to recoup their loss? Seems renting out this obvious illegal dwelling not really fit for human habitation, which I’m sure they didn’t do for free, was the cause for the Deps to check it. Never would have if nobody would have been illegally living there in the first place.
    Yeah he was just putting down the gun, but there are rules when entering on occupied dwelling as we all know. Celeste cares about those but the silliness about the gun placement, please.

  • I see both sides of this. One one hand, it should have been obvious someone was “living” in the shithole shed. Therefore, it’s a dwelling. So the door was knocked down, the occupant does what he does with the B.B. gun (two versions) and a shooting occurred. So from the legal perspective, a dwelling is a dwelling. Could they just walked up to the front door of any house, investigating the same caper, and simply forced their way in? Nope.

    On the other hand, the deputies are out there doing the Lord’s work. If they had to do it all over again, knowing what they know, would they? Nope.

    Wonder what the “near homeless” family is doing with their new found wealth. No winners in this case. What became of the deputies, did they face any repercussions?

    • @ Spade: Valid points with no winners in this one. Even with the million dollars (after attorney fees) the Mendez family is still affected. A warrant and common sense approach hould have preceded the entry into the dwelling. Whatever happened to “knock and notice” aspect? Times are changing, so should tactics with quality thinking

  • Sure Fire, it is against the law, as Im sure you know, to rent and illegal dwelling. Perhaps they may have been renting, perhaps not. But, to claim that renting that shack is the cause of some guy having part of his leg amputated because of two either trigger happy or grossly incompetent security guards is a stretch, even for a law enforcement report. Why not sue Home Depot for selling the wood to make the shack? I say part of the judgment should come from the incompetent cops.

    Calling it a Spade, “deputies doing the lord’s work?” Please, they do the lord’s work as much as such as a pedophile priest does the lord’s work. I guess if you look at the LEOs who diddle little cadets, you may be right. Be serious, they are doing their job, for good pay and good benefits. Beats the other alternative the lord has in store for them, security guard at the local walmart. The Lord’s Work, please.

  • EF, if you knew what we really do, you would recognize the term, “Lord’s work,” as an accurate descriptor.

  • EDITOR’S NOTE:

    For those of you who have expressed interest in additional details of this case, I recommend that you look at one or all of the three documents I recently linked to at the story’s end. The documents are from the original 4-day federal trial, and they include the defendants trial brief, the plaintiff’s trial brief, and the 61-page post-trial Finding of Fact by U.S. District Court Judge Michael Fitzgerald.

    C.

    • And I recommend you check into your own bias, lady. Summarization shouldn’t be license to present only one side as fact. Even if you feel , to quote cf , “ you have no duty to present the other side”

  • CF, none of this happens without them living in the illegal dwelling, that’s the only point I was making. Lawyers working for the county will do what they do. Your cop hate extend to the point you believe he was placing the gun on the ground? Illegal entry, sure sounds like it but see I can call out poor police tactics and feel for people like these two, w/out buying the bs narrative because I have common sense.

  • I believe you should check the facts on this article, as you repeatedly refer to Deputy Pederson as a male, which she most certainly is not. I think you mixed up the actions of both Deputies, as the entire statement regarding Deputy Pederson was actually Deputy Conley. Additionally, Sergeant Minster was not the supervisor of the COPS HIT Team. He was the supervisor of a different Lancaster Station Unit and asked Deputy Pederson and Conley to assist them with the search.

  • Celeste has gone as far as actually make stuff up and when she is personally told the truth she disregards the information and prints it anyway. she is a gangster groupie and has always hated the police. I gave her the truth on many of her stories and she ignored me. but as a commander of CJ she was always asking for perks for her homies. on one such occasion the guy after getting the favor by me tried to stab another inmate. My Bad. she won’t print this. Sheriffs gang JUMP OUT BOYS running crazy in Compton. There was 5 of them and they worked Santa Clarita, Lomita, Malibu. Real Killers

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