Angel Mendez v. County of Los Angeles

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; COUNTY
OF LOS ANGELES SHERIFFS OPINION
DEPARTMENT,
Defendants,

and

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

Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted
December 8, 2015—Pasadena, California

Filed March 2, 2016
2 MENDEZ V. COUNTY OF LOS ANGELES

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

Opinion by Judge Gould

SUMMARY**

Civil Rights

The panel (1) affirmed the district court’s bench trial
judgment finding that Los Angeles County Sheriff’s
Department deputies were not entitled to qualified immunity
for a warrantless entry and were liable for the damages
arising from the shooting that followed, (2) dismissed as
moot plaintiffs’ cross-appeal, (3) reversed the district court’s
determination that the deputies were not entitled qualified
immunity on plaintiffs’ knock-and-announce claim, and
(4) remanded for the district court to vacate the nominal
damages for that claim.

While participating in a warrantless raid of a house, the
defendant deputies entered the backyard, opened the door to
a wooden shack, and shot plaintiffs, a homeless couple who
resided in the shack.

*
The Honorable George Caram Steeh III, Senior District Judge for the
U.S. District Court 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. COUNTY OF LOS ANGELES 3

The panel first held that the district court properly
determined that the deputies conducted a search within the
meaning of the Fourth Amendment under clearly established
law. The panel determined that the facts supported a finding
that the shack was in the curtilage adjacent to the home and
that it was clearly established at the time that the deputies
undertook a search by entering the rear of the house through
a gate and by further opening the door to the shack in the
curtilage behind the house. The panel agreed with the district
court that the deputies did not demonstrate specific and
articulable objective facts of an exigency that would
meaningfully differentiate this case from clearly established
law, or that would have demonstrated that the entry was a
lawful protective sweep. Because the officers violated the
Fourth Amendment by searching the shack without a warrant,
which proximately caused the plaintiffs’ injuries, the panel
held that the district court’s award of damages under the
provocation doctrine was proper.

The panel held that the deputies violated the knock-and-
announce rule, but that the law in 2010 was not clearly
established in this respect. To clearly establish the law going
forward, the panel held that officers must knock and re-
announce their presence when they know or should
reasonably know that an area within the curtilage of a home
is a separate residence from the main house. Finally, the
panel held that even though only one of the officers opened
the door to the shack, both were liable as integral participants
in the unlawful search.
4 MENDEZ V. COUNTY OF LOS ANGELES

COUNSEL

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

David Drexler, Sherman Oaks, California, for Plaintiffs-
Appellees/Cross-Appellants.

OPINION

GOULD, Circuit Judge:

While participating in a warrantless raid of a house, Los
Angeles County Sheriff’s Department deputies Christopher
Conley and Jennifer Pederson entered the backyard, opened
the door to a wooden shack, and shot Angel and Jennifer
Mendez, a homeless couple who resided in the shack. After
a bench trial, the district court held that the deputies violated
the Fourth Amendment knock-and-announce requirement and
prohibition on warrantless searches, finding that no exigent
circumstances applied. The district court denied the deputies’
bid for qualified immunity and awarded the Mendezes
damages.

The deputies argue on appeal that the district court erred
by denying their qualified immunity defense. The Mendezes
cross-appeal the district court’s conclusion that the deputies
had probable cause to believe that a wanted parolee was
hiding in the shack when the deputies searched it. We affirm
the district court’s conclusion that the deputies were not
entitled to qualified immunity for their warrantless entry, and
we hold that the district court properly awarded damages for
 MENDEZ V. COUNTY OF LOS ANGELES 5

the shooting that followed. Given this disposition, the cross-
appeal is dismissed as moot. We reverse, however, the
district court’s determination that the deputies were not
entitled qualified immunity on the knock-and-announce
claim, and we remand for the district court to vacate the
nominal damages for that claim.

I

Because this case involves the deputies’ renewed
assertion of qualified immunity after judgment, we recite the
following facts in the light most favorable to the nonmoving
parties and the factfinder’s verdict. A.D. v. Cal. Highway
Patrol, 712 F.3d 446, 452–53 (9th Cir. 2013).

In October 2010, Deputies Christopher Conley and
Jennifer Pederson were part of a team of twelve police
officers that responded to a call from a fellow officer who
believed he had spotted a wanted parolee named Ronnie
O’Dell entering a grocery store. O’Dell had been classified
as armed and dangerous by a local police team, although that
classification was “standard” for all parolees-at-large without
regard to individual circumstances. Before that day, “Conley
and Pederson did not have any information regarding Mr.
O’Dell.” Conley testified that at the time of the search he
knew nothing about O’Dell’s “criminal past” and that he
didn’t recall being given information that O’Dell was armed
and dangerous, and Pederson testified that the only
information she was given about O’Dell was that he was a
parolee-at-large.1 The officers searched the grocery store for

1
Pederson also stated, in response to a leading question, that she was
shown a “flyer of sorts” containing a picture of O’Dell and information
about O’Dell’s criminal history, but she did not testify what the flyer
6 MENDEZ V. COUNTY OF LOS ANGELES

O’Dell but did not find him. The officers then met behind the
store to debrief.

During this debriefing, another deputy, Claudia Rissling,
received a tip from a confidential informant that a man fitting
O’Dell’s description was riding a bicycle in front of a
residence owned by a woman named Paula Hughes. The
officers “developed a plan” in which some officers would
proceed to the Hughes house, but because “the officers
believed that there was a possibility that Mr. O’Dell already
had left the Hughes residence,” others would proceed to a
different house on the same street. Conley and Pederson
were “assigned to clear the rear of the Hughes property for
the officers’ safety . . . and cover the back door of the Hughes
residence for containment.” The officers were told that “a
male named Angel (Mendez) lived in the backyard of the
Hughes residence with a pregnant lady (Mrs. Mendez).”2
Pederson heard that announcement, but Conley testified that
he did not recall it.3

Conley and Pederson arrived at the Hughes residence
along with three other officers. The officers did not have a
search warrant to enter Hughes’s property. Conley and
Pederson were directed “to proceed to the back of the Hughes
residence through the south gate.” Once in the backyard, the

described.
2
Mr. Mendez was a high school friend of Hughes, and Hughes
allowed him to construct and live in a shack in her backyard. The
Mendezes had been living there for about ten months.
3
The district court found that “[e]ither he did not recall the
announcement at trial or he unreasonably failed to pay attention when the
announcement was made.”
 MENDEZ V. COUNTY OF LOS ANGELES 7

deputies encountered three storage sheds and opened each of
them, finding nothing.

During this time, other officers (led by Sergeant Gregory
Minster) banged on the security screen outside Hughes’s front
door and asked Hughes to open the door. Speaking through
the door, Hughes asked the officers whether they had a
warrant, and she refused to open the door after being told they
did not. Minster then heard someone running inside the
residence, who he assumed was O’Dell. The officers
retrieved a pick and ram to bust open Hughes’s door, at which
point Hughes opened the front door. Hughes was pushed to
the ground, handcuffed, and placed in the backseat of a patrol
car. The officers did not find anyone in the house.

Pederson then met up with Minster and told him, “I’m
going [to] go ahead and clear the backyard,” and Minster
approved. Conley and Pederson then proceeded through the
backyard toward a 7' x 7' x 7' shack made of wood and
plywood. The shack was surrounded by an air conditioning
unit, electric cord, water hose, clothes locker (which may
have been open), clothes, and other belongings. The deputies
did not knock and announce their presence at the shack, and
Conley “did not feel threatened.” Approaching the shack
from the side, Conley opened the wooden door and pulled
back a blue blanket used as a curtain to insulate the shack.
The deputies then saw the silhouette of an adult male holding
what appeared to be a rifle pointed at them. Conley yelled
“Gun!” and both deputies fired fifteen shots in total. Other
nearby officers ran back toward the shots, and one officer
shot and killed a dog.

The tragedy is that in fact, Mendez was holding only a
BB gun that he kept by his bed to shoot rats that entered the
8 MENDEZ V. COUNTY OF LOS ANGELES

shack; as the door was opening, he was in the process of
moving the BB gun so he could sit up in bed. The district
court found that the BB gun was pointed at the deputies,
although the witnesses’ testimony on that point was
conflicting and the court recognized that Mendez may not
have intended the gun to point that direction while he was
getting up. Both Mendezes were injured by the shooting.
Mr. Mendez required amputation of his right leg below the
knee, and Ms. Mendez was shot in the back.

The Mendezes sued Conley and Pederson under
42 U.S.C. § 1983, alleging a violation of their Fourth
Amendment rights. After a bench trial, the district court held
that the deputies’ warrantless entry into the shack was a
Fourth Amendment search and was not justified by exigent
circumstances or another exception to the warrant
requirement. The district court also held that the deputies
violated the Fourth Amendment knock-and-announce rule.
The court concluded that given Conley’s reasonably mistaken
fear upon seeing Mendez’s BB gun, the deputies did not use
excessive force when shooting the Mendezes, see Graham v.
Connor, 490 U.S. 386 (1989), but the deputies were liable for
the shooting under our circuit’s provocation rule articulated
in Alexander v. City & County of San Francisco, 29 F.3d
1355 (9th Cir. 1994). The court also held that its conclusions
in each respect were supported by clearly established law and
that the officers were not entitled to qualified immunity. The
Mendezes were awarded roughly $4 million in damages for
the shooting, nominal damages of $1 each for the
unreasonable search and the knock-and-announce violation,
and attorneys’ fees. The deputies filed a notice of appeal, as
well as a motion to amend the judgment arguing that the
district court erred in denying qualified immunity. The
district court denied the motion, and the deputies filed a
 MENDEZ V. COUNTY OF LOS ANGELES 9

second notice of appeal as to that decision. The Mendezes
filed a cross-appeal challenging aspects of the district court’s
factfinding in case we were inclined to grant qualified
immunity on the facts as found by the district court.4

II

We review de novo the district court’s post-trial denial of
qualified immunity, construing the facts in the light most
favorable to the factfinder’s verdict and the nonmoving
parties. Cal. Highway Patrol, 712 F.3d at 452–53. The
court’s factual findings are reviewed for clear error. Resilient
Floor Covering Pension Trust Fund Bd. of Trs. v. Michael’s
Floor Covering, Inc., 801 F.3d 1079, 1088 (9th Cir. 2015).

Law enforcement officers are entitled to qualified
immunity from damages unless they violate a constitutional
right that “was clearly established at the time of the alleged
misconduct.” Ford v. City of Yakima, 706 F.3d 1188, 1192
(9th Cir. 2013) (citations omitted). This inquiry “must be
undertaken in light of the specific context of the case, not as
a broad general proposition.” Saucier v. Katz, 533 U.S. 194,
201 (2001). But “officials can still be on notice that their
conduct violates established law even in novel factual
circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002).
“[T]he salient question . . . is whether the state of the law” at
the time of the events (here, October 2010) gave the deputies
“fair warning” that their conduct was unconstitutional. Id. In
other words, an officer is entitled to qualified immunity
unless existing case law “squarely governs the case here.”

4
The Mendezes state that they waive their cross-appeal if we affirm the
district court’s award of monetary damages for the shooting.
10 MENDEZ V. COUNTY OF LOS ANGELES

Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (per curiam)
(quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004)).

III

A

We start by analyzing the legality of the deputies’ entry
into the wooden shack. The deputies first argue that they did
not “search” the shack within the meaning of the Fourth
Amendment when Conley opened the door.

In 2010, the law was clearly established that a “search”
under the Fourth Amendment occurs when the government
invades an area in which a person has a “reasonable
expectation of privacy.” United States v. Scott, 450 F.3d 863,
867 (9th Cir. 2005) (citing Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring)). This includes the
“area immediately adjacent to a home,” known as the
“curtilage.” United States v. Struckman, 603 F.3d 731, 739
(9th Cir. 2010) (citation omitted). Four factors used to
determine whether an area lies within the curtilage are “the
proximity of the area claimed to be curtilage to the home,
whether the area is included within an enclosure surrounding
the home, the nature of the uses to which the area is put, and
the steps taken by the resident to protect the area from
observation by people passing by.” Id. (quoting United States
v. Dunn, 480 U.S. 294, 301 (1987)).

The deputies contend that not every reasonable officer
would have assumed that this “dilapidated” shack was a
dwelling. This assertion is irrelevant, as it erroneously
assumes that the Fourth Amendment applies only to
residences. See Dunn, 480 U.S. at 307–08 (“[T]he general
 MENDEZ V. COUNTY OF LOS ANGELES 11

rule is that the curtilage includes all outbuildings used in
connection with a residence, such as garages, sheds, and
barns connected with and in close vicinity of the residence.”)
(citation and internal alterations omitted); United States v.
Johnson, 256 F.3d 895, 898 (9th Cir. 2001) (en banc)
(holding that a shed may be protected under the Fourth
Amendment and remanding for district court to answer the
question in first instance). In Struckman, we held that a
“backyard—a small, enclosed yard adjacent to a home in a
residential neighborhood—is unquestionably such a ‘clearly
marked’ area ‘to which the activity of home life extends.’”
603 F.3d at 739 (citation omitted).

In this case, the trial court found that the shack was thirty
feet from the house; it “was not within the fence that enclosed
the grassy backyard area” but “was located in the dirt-surface
area that was part of the rear of the Hughes property” and
could not be observed, let alone entered, “without passing
through the south gate and entering the rear of the Hughes
property.” These facts support a finding that the shack was
in the curtilage. Therefore, it was clearly established under
Struckman and Dunn that the deputies undertook a search
within the meaning of the Fourth Amendment by entering the
rear of Hughes’s property through a gate and by further
opening the door to the shack in the curtilage behind the
house. The deputies’ citations to cases involving “abandoned
property” are inapposite because even if the shack was
“dilapidated,” the officers knew that Hughes lived in the
house, and the shack was very clearly in the curtilage of the
house.

The district court correctly determined that the deputies
conducted a search within the meaning of the Fourth
Amendment under clearly established law.
12 MENDEZ V. COUNTY OF LOS ANGELES

B

The deputies next argue that they are entitled to qualified
immunity because a reasonable officer could have thought
that exigent circumstances justified the search.

A warrantless search “is reasonable only if it falls within
a specific exception to the warrant requirement.” Riley v.
California, 134 S. Ct. 2473, 2482 (2014) (citing Kentucky v.
King, 563 U.S. 452, 459–62 (2011)). The exigent
circumstances exception encompasses situations in which
police enter without a warrant “to render emergency
assistance to an injured occupant or to protect an occupant
from imminent injury,” while “in hot pursuit of a fleeing
suspect,” or “to prevent the imminent destruction of
evidence.” King, 563 U.S. at 460 (citations omitted)
(collecting cases).

The deputies primarily argue that “[a]n officer may enter
a third party’s home to effectuate an arrest warrant if he has
probable cause or a reason to believe the suspect is within,
and exigent circumstances support entry without a search
warrant.” Although the question is quite debatable, we will
assume without deciding that the officers were not “plainly
incompetent” in concluding they had probable cause to
believe that O’Dell was in the shack behind Hughes’s house.
Stanton v. Sims, 134 S. Ct. 3, 5 (2013).5 Even with probable

5
To mention just one consideration, 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 before the officers arrived. The
original group of officers recognized this, as some of them went to another
house to look for O’Dell. But we have no reason to further address the
probable cause question, as we may affirm while assuming the district
court’s probable cause predicate.
 MENDEZ V. COUNTY OF LOS ANGELES 13

cause, clearly established law indicates the unlawfulness of
the deputies’ entry into the shack in this case.

As the Supreme Court held in Steagald v. United States,
451 U.S. 204 (1981), exigent circumstances to enter a home
do not exist merely because the police know the location of
a fugitive, even if they possess an arrest warrant for that
person. Id. at 211–12. In Steagald, the police received a tip
from a confidential informant regarding the location of “a
federal fugitive wanted on drug charges.” Id. at 206. The
officers executed an arrest warrant at that location two days
later, but the Court held that the search-warrantless entry
could not be justified absent exigent circumstances. Id. at
211–12. The Court rejected the view that “a search warrant
is not required in such situations if the police have an arrest
warrant and reason to believe that the person to be arrested is
within the home to be searched.” Id. at 207 n.3. Steagald
establishes that in this case, the fact that the deputies
suspected O’Dell to be in the shack was not, by itself,
sufficient to justify the warrantless search.

Although the deputies do not use the phrase “hot pursuit,”
their exigency argument seems to be premised on that
doctrine.6 The hot pursuit exception typically encompasses
situations in which police officers begin an arrest in a public
place but the suspect then escapes to a private place. United
States v. Santana, 427 U.S. 38, 42–43 (1976). In Warden v.
Hayden, 387 U.S. 294 (1967), the Supreme Court upheld a

6
Indeed, the other three possibilities listed in King—that officers
entered to render emergency assistance to an injured occupant, to protect
an occupant from imminent injury, or to prevent the imminent destruction
of evidence, King, 563 U.S. at 460—do not fit the circumstances presented
here.
14 MENDEZ V. COUNTY OF LOS ANGELES

warrantless entry into a home when “police were informed
that an armed robbery had taken place, and that the suspect
had entered [the home] less than five minutes before they
reached it.” Id. at 298. By contrast, the Court concluded in
Welsh v. Wisconsin, 466 U.S. 740 (1984), that the state’s hot
pursuit argument was “unconvincing because there was no
immediate or continuous pursuit of the petitioner from the
scene of a crime.” Id. at 753.

As a preliminary matter, a police officer spotting O’Dell,
a wanted parole-violator, outside of a grocery store does not
appear to qualify as pursuit from “the scene of a crime” as in
Warden or Welsh. But even assuming the hot pursuit doctrine
applies, Welsh explains why the deputies here are not entitled
to qualified immunity. In Welsh, a witness “observed a car
being driven erratically” and called the police, but the driver
abandoned his car and “walked away from the scene.”
466 U.S. at 742. Police arrived “[a] few minutes later” and,
after determining that the owner of the car was Welsh, the
police walked to Welsh’s residence “a short distance from the
scene.” Id. at 742–43. Without securing a warrant or
consent, the police entered and arrested Welsh. Id. at 743.
The Court held that the entry was not valid under the hot
pursuit doctrine because “there was no immediate or
continuous pursuit of the petitioner from the scene of a
crime.” Id. at 753.

Our court, sitting en banc, applied Welsh to a situation in
which police officers broke into a fenced yard in search of a
man who escaped while police were arresting him on an
outstanding warrant. Johnson, 256 F.3d at 898–900, 907–08.
We concluded that the search in that case was not
“continuous” because the officers had seen the suspect run
into the woods but lost sight of him for “over a half hour”
 MENDEZ V. COUNTY OF LOS ANGELES 15

before they entered the property at issue. Id. at 907–08.
“[A]ny other outcome,” we cautioned, “renders the concept
of ‘hot pursuit’ meaningless and allows the police to conduct
warrantless searches while investigating a suspect’s
whereabouts.” Id. at 908.

Welsh and Johnson squarely govern this case and clearly
establish that the hot pursuit doctrine does not justify the
deputies’ search of the shack. Officer Zeko spotted a person
he thought was O’Dell outside the grocery store, but that was
the last time any policeman saw him before the search took
place, which the record suggests was about one hour later.
While the deputies received additional information about
O’Dell’s possible location from the confidential informant,
the location identified was outside Hughes’ home, not in the
house or the shack behind it. And the officers still did not
enter the shack until at least fifteen minutes after learning that
O’Dell was outside Hughes’ home. Moreover, the officers
were far from sure that O’Dell was still (or had ever been)
inside Hughes’s house—let alone in the shack—as evidenced
by the fact that they simultaneously searched a house down
the street. As in Welsh, “there was no immediate or
continuous pursuit of the [suspect] from the scene of a
crime.” 466 U.S. at 753. And as Johnson established, Welsh
applies when the police enter the backyard of a third-party to
look for a suspect, even when the suspect has evaded prior
attempts at arrest (as O’Dell apparently had). Johnson,
256 F.3d at 899–900, 907.

The deputies also try to justify the warrantless entry based
on a threat to the officers’ safety, urging that O’Dell had been
categorized as armed and dangerous. But Steagald and
Johnson both counsel that exigent circumstances do not exist
just because the police are dealing with a fugitive, even if he
16 MENDEZ V. COUNTY OF LOS ANGELES

is wanted on serious federal drug charges. Steagald, 451 U.S.
at 207; Johnson, 256 F.3d at 900, 908. Moreover, Conley
testified that he was not aware of O’Dell’s categorization and
did not have any information about O’Dell. Conley explained
that his gun was drawn during the search because he
“intermittently” used the light on his gun to “see what was
inside of the sheds.” A search cannot be considered
reasonable based on facts that “were unknown to the officer
at the time of the intrusion.” Moreno v. Baca, 431 F.3d 633,
639 (9th Cir. 2005). And even if we assume that Pederson
knew about the characterization, the district court found that
“the deputies lacked any credible information that the
suspect, O’Dell, was in Plaintiffs’ shack,” which explains
why Conley “did not feel threatened” before entering the
shed. The deputies correctly assert that the exigent
circumstances inquiry is objective, not subjective, see
Anderson v. Creighton, 483 U.S. 635, 641 (1987), but the
information they had at the time, as confirmed by the
conclusions they reached on the scene, is certainly pertinent.
We agree with the district court that these facts support a
conclusion based on the objective “totality of the
circumstances” that the deputies “failed to demonstrate
‘specific and articulable facts’” of an exigency.7

While the deputies’ brief urges that “judges should be
cautious about second-guessing a police officer’s assessment,
made on the scene, of the danger presented by a particular
situation,” (emphasis in brief) (quoting Ryburn v. Huff, 132
S. Ct. 987, 991–92 (2012) (per curiam)), that argument is

7
The deputies’ brief also contends that there was a possibility of
ambush arising from other debris in the yard, including parked cars, but
even if so, a threat of ambush from other structures would not justify
searching the shack.
 MENDEZ V. COUNTY OF LOS ANGELES 17

inconsistent with the fact that the deputies here did not fear
imminent violence. We agree with the district court that on
this record the deputies did not demonstrate specific and
articulable objective facts of an exigency that would
meaningfully differentiate this case from clearly established
law.

C

Next, the deputies argue that they could have reasonably
assumed that Hughes had consented to a search of the shack.
The district court assumed for the sake of analysis that
Hughes had authority to consent to a search of the shack, but
it reasoned that even if Hughes had allowed the officers to
enter her home after officers brought a pick and ram from
their patrol car and set the pick against the door, any
“consent” was “coerced and consequently invalid.” The
deputies argue that because they spoke to another officer
(Sergeant Minster) in the Hughes residence before searching
the shack, “the defendants would assume the officers were
lawfully in the main residence,” and they “could reasonably
believe the sergeant obtained consent for the search” of the
shack.

We are not persuaded by this argument. Given the
deputies’ position that they lawfully entered the backyard
pursuant to an exigent circumstance, it is unclear why the
deputies would have thought that the other officers had
gained consent to search the house rather than having relied
on exigent circumstances as well. And the deputies point to
no facts in the record suggesting that they knew Hughes had
consented to a search of the shack. The district court
correctly determined that the deputies could not have
18 MENDEZ V. COUNTY OF LOS ANGELES

reasonably believed that their search of the shack was
consensual.

D

Finally, the deputies argue that their search of the shack
was a lawful protective sweep. We note that there is both a
split between the circuits and a split within our circuit as to
whether a protective sweep may be done “where officers
possess a reasonable suspicion that their safety is at risk, even
in the absence of an arrest.” United States v. Torres-Castro,
470 F.3d 992, 997 (10th Cir. 2006) (collecting cases,
including United States v. Reid, 226 F.3d 1020, 1027 (9th Cir.
2000), and United States v. Garcia, 997 F.2d 1273, 1282 (9th
Cir. 1993)). We assume without deciding that the protective
sweep doctrine could apply here. And, although the question
is subject to debate, see n.5, supra, we further assume without
deciding that the deputies’ entry into Hughes’s house was
lawful and a protective sweep could be proper if all other
requirements were met.

The district court determined that the officers did not
conduct a lawful protective sweep because, even assuming
that entry into the Hughes residence was constitutional, the
deputies’ authority to conduct a protective sweep did not
extend to the shack. The court concluded that “there is
clearly established law requiring a separate warrant for a
separate dwelling, especially when officers are aware of the
separate dwelling’s existence,” so lawful presence in the
house did not justify sweeping the shack.

We need not decide whether the district court’s qualified
immunity analysis was correct, as the deputies’ protective
sweep argument fails for another reason. To justify a
 MENDEZ V. COUNTY OF LOS ANGELES 19

protective sweep, police must identify “specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warranted the officer
in believing that the area swept harbored an individual posing
a danger to the officer or others.” Buie, 494 U.S. at 327
(internal citations, alterations, and quotation marks omitted).
The deputies are incorrect when arguing that even if “there
were no exigent circumstances to permit a search of the shed,
a reasonable officer could have believed it was proper to
search the shed as [part of a] protective sweep.” As we have
explained, “the protective sweep and exigent circumstances
inquiries are related.” United States v. Furrow, 229 F.3d 805,
811 (9th Cir. 2000), overruled in part on other grounds by
Johnson, 256 F.3d at 914. For the same reasons that exigent
circumstances did not justify entry into the shack, see section
III.B., supra, the deputies did not have the requisite suspicion
of danger to justify a protective sweep.

For the foregoing reasons, we hold that the deputies
violated clearly established Fourth Amendment law when
entering the wooden shack without a warrant.

IV

The district court also concluded that the deputies
violated clearly established law because they did not knock-
and-announce their presence at the shack before they entered
it. We hold that the deputies violated the knock-and-
announce rule, but our law in 2010 was not clearly
established in this respect. We reverse on this count and
remand for the district court to vacate the nominal damages
on this claim.
20 MENDEZ V. COUNTY OF LOS ANGELES

A

The Fourth Amendment knock-and-announce rule
requires officers to announce their presence before they enter
a home. Wilson v. Arkansas, 514 U.S. 927, 931–34 (1995).
Police may be exempt from the requirement, however, when
“circumstances present[] a threat of physical violence.”
Richards v. Wisconsin, 520 U.S. 385, 391 (1997) (quoting
Wilson, 514 U.S. at 936). The district court determined here
that because the shack was a separate residence, a fact that the
officers knew or should have known, the officers were
required to announce their presence at the shack, and that no
exception applied for the same reasons that there was no
exigency to enter for officer safety.

For the reasons stated above, the district court correctly
concluded that no exigency exception applied. See also
United States v. Granville, 222 F.3d 1214, 1219 (9th Cir.
2000) (holding that a no-knock entry was not justified
because the government did not “cite any specific facts”
suggesting that Granville posed a threat to the officers). In
Granville, we explained, “The government simply relies on
generalizations and stereotypes that apply to all drug dealers.
Our cases have made clear that generalized fears about how
drug dealers usually act or the weapons that they usually keep
is not enough to establish exigency.” Id. Here, the deputies
similarly rely on a stereotypical characterization of all
parolees-at-large as a threat without pointing to any specific
facts known about O’Dell. We conclude that the knock-and-
announce exigency exception does not apply.

The officers did, however, announce their presence at
Hughes’ front door, and we disagree with the district court
that existing case law squarely governs the question whether
 MENDEZ V. COUNTY OF LOS ANGELES 21

the deputies needed to announce their presence again before
entering the shack in the curtilage. We have stated that
“officers are not required to announce at [e]very place of
entry,” United States v. Valenzuela, 596 F.2d 1361, 1365
(1979) (citation omitted) (holding that there is no requirement
to knock at a garage after properly entering home), and we
are not aware of case law clearly establishing that officers
must re-announce their presence at a shack in the curtilage,
even if it was obvious that it was being used as a residence.

Concluding otherwise, the district court relied on United
States v. Villanueva Magallon, 43 F. App’x 16 (9th Cir.
2002), which held that the knock-and-announce rule was not
violated during the search of a separate house (#784) on the
same property because “Villanueva possessed and controlled
both 792 and 784 and, in fact, 784 was not being used as a
separate residence by some third, innocent party.” Id. at
17–18. The district court reasoned that because the shack in
this case was being used as a separate residence by a third
party, a knock was required. But Villanueva Magallon also
stated that officers are not required to knock and announce “at
each additional point of entry into structures within the
curtilage.” Id. at 18. Because the shack here was in the
curtilage, Villanueva Magallon does not clearly prohibit the
deputies’ actions here.

The district court also relied on the proposition in United
States v. Cannon, 264 F.3d 875, 879 (9th Cir. 2001), that
entry into a separate dwelling (in Cannon, a rental unit in the
rear of the house) requires a separate warrant. This
proposition is at too high a level of generality to constitute
clearly established law on the question whether police are
required to separately knock and announce their presence at
a shack in the curtilage. Mullenix, 136 S. Ct. at 308 (“We
22 MENDEZ V. COUNTY OF LOS ANGELES

have repeatedly told courts . . . not to define clearly
established law at a high level of generality.” (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011))).

In the absence of clearly established law that squarely
governs the situation here, qualified immunity is appropriate
on the knock-and-announce claim. Id. at 309. We reverse
and remand for the district court to vacate the award of
nominal damages on this claim.

B

To clearly establish the law going forward, see Pearson
v. Callahan, 555 U.S. 223, 236 (2009), we hold that the
deputies violated the Fourth Amendment when they failed to
knock at the shack. We do not retreat from the general
principle that “officers are not required to announce at [e]very
place of entry” within a residence. Valenzuela, 596 F.2d at
1365. But we agree with the district court that the deputies
here should have been aware that the shack in the backyard
was being used as a separate residence. The deputies were
told that a couple was living behind the house, and the shack
itself was surrounded by an air conditioning unit, electric
cord, water hose, and clothes locker. And parallel to the
district court’s reasoning that a knock should be required for
a separate residence just as a warrant is, see Cannon,
264 F.3d at 879, we hold that officers must knock and re-
announce their presence when they know or should
reasonably know that an area within the curtilage of a home
is a separate residence from the main house.

This rule is supported by the purposes of the knock-and-
announce rule, which is designed to protect our privacy and
safety within our homes. United States v. Becker, 23 F.3d
 MENDEZ V. COUNTY OF LOS ANGELES 23

1537, 1540 (9th Cir. 1994). We have recognized that when
officers fail to knock and announce, they risk the “violent
confrontations that may occur if occupants of the home
mistake law enforcement for intruders.” United States v.
Combs, 394 F.3d 739, 744 (9th Cir. 2005). Indeed, here an
announcement that police were entering the shack would
almost certainly have ensured that Mendez was not holding
his BB gun when the officers opened the door. Had this
procedure been followed, the Mendezes would not have been
shot.

V

Although the district court held that the deputies’
shooting of the Mendezes was not excessive force under
Graham v. Connor, 490 U.S. 386 (1989), the district court
awarded damages under the provocation doctrine. “[W]here
an officer intentionally or recklessly provokes a violent
confrontation, if the provocation is an independent Fourth
Amendment violation, he may be held liable for his otherwise
defensive use of deadly force.” Billington v. Smith, 292 F.3d
1177, 1189 (9th Cir. 2002) (citing Alexander v. City &
County of San Francisco, 29 F.3d 1355 (9th Cir. 1994)).
Here, the district court held that because the officers violated
the Fourth Amendment by searching the shack without a
warrant, which proximately caused the plaintiffs’ injuries,
liability was proper. We agree.

The deputies argue first that the provocation doctrine is
inapplicable because they did not “provoke a violent response
by plaintiffs.” In other words, they claim that because Mr.
Mendez did not intend to threaten the officers with his gun,
he was not responding to the deputies’ actions and they did
not “provoke” him. We reject this argument. Our case law
24 MENDEZ V. COUNTY OF LOS ANGELES

does not indicate that liability may attach only if the plaintiff
acts violently; we simply require that the deputies’
unconstitutional conduct “created a situation which led to the
shooting and required the officers to use force that might have
otherwise been reasonable.” Espinosa v. City & County of
San Francisco, 598 F.3d 528, 539 (9th Cir. 2010). And the
consequences of the deputies’ position make that position
unpersuasive. On their theory, Mendez would ostensibly be
entitled to damages if after entry he had intentionally pointed
a weapon at the police while shouting “I’ll kill you,” but here
he would be out of luck because he was merely holding a BB
gun and didn’t intend to threaten the police.

Moreover, this case does not require us to extend the
provocation doctrine; we have applied provocation liability
in a similar circumstance without requiring the plaintiff to
show he acted violently. In Espinosa, we found that liability
under Alexander-Billington was possible when officers
entered an attic and shot a man because an officer “believed
that he saw something black in [the man’s] hand that looked
like a gun,” even though the suspect “had not brandished a
weapon, spoken of a weapon, or threatened to use a weapon”
and “in fact, did not have a weapon.” 598 F.3d at 533,
538–39. Espinosa thus indicates that the provocation
doctrine can apply here even though Mendez did not act
violently in response to the deputies’ entry.

The deputies also argue that they did not intentionally or
recklessly violate Mendez’s rights, a prerequisite to
provocation liability. See Billington, 292 F.3d at 1189. But
because qualified immunity “protects all but the plainly
incompetent or those who knowingly violate the law,”
Stanton, 134 S. Ct. at 5 (citation and internal quotation marks
omitted), our determination that the deputies are not entitled
 MENDEZ V. COUNTY OF LOS ANGELES 25

to qualified immunity on the warrantless entry claim
necessarily indicates that they acted recklessly or
intentionally with respect to Mendez’s rights. And the record
here bears out Conley and Pederson’s recklessness—without
a reasonable belief of exigent circumstances, the deputies
entered Hughes’s property and proceeded to search a shack in
an attempt to execute an arrest warrant for a parolee that, at
most, may have been on the property, contrary to Steagald,
451 U.S. at 211–12, and Johnson, 256 F.3d at 907–08.
Indeed, the deputies appear to have been simply
“conduct[ing] warrantless searches while investigating a
suspect’s whereabouts,” id. at 908, which Johnson explicitly
forbids, id., and Welsh prohibits by implication, 466 U.S. at
753.

Finally, even without relying on our circuit’s provocation
theory, the deputies are liable for the shooting under basic
notions of proximate cause.8 The Supreme Court has
emphasized that § 1983 “should be read against the
background of tort liability that makes a man responsible for
the natural consequences of his actions.” Malley v. Briggs,
475 U.S. 335, 344 n.7 (1986) (quoting Monroe v. Pape,
365 U.S. 167, 187 (1961)). “Proximate cause is often
explicated in terms of foreseeability or the scope of the risk
created by the predicate conduct,” and the analysis is
designed 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.”
Paroline v. United States, 134 S. Ct. 1710, 1719 (2014)
(citations omitted).

8
This conclusion follows from the Mendezes’ argument on cross-
appeal that the district court erred by not awarding “reasonably
foreseeable” damages jointly on all claims.
26 MENDEZ V. COUNTY OF LOS ANGELES

The district court here, discussing District of Columbia v.
Heller, 554 U.S. 570 (2008), recognized that when many
Americans own firearms “to protect their own homes[, a]
startling entry into a bedroom will result in tragedy.” The
court also cited Justice Jackson’s decades-old admonition in
a case involving a warrantless entry:

[T]he method of enforcing the law exemplified
by this search is one which not only violates legal
rights of defendant but is certain to involve the
police in grave troubles if continued. . . . Many
home-owners in this crime-beset city doubtless
are armed. When a woman sees a strange man, in
plain clothes, prying up her bedroom window and
climbing in, her natural impulse would be to
shoot. . . . But an officer seeing a gun being
drawn on him might shoot first.

McDonald v. United States, 335 U.S. 451, 460–61 (1948)
(Jackson, J.,concurring). Under these principles, the situation
in this case, where Mendez was holding a gun when the
officers barged into the shack unnannounced, was reasonably
foreseeable. The deputies are therefore liable for the shooting
as a foreseeable consequence of their unconstitutional entry
even though the shooting itself was not unconstitutionally
excessive force under the Fourth Amendment. See Billington,
292 F.3d at 1190 (“[I]f an officer’s provocative actions are
objectively unreasonable under the Fourth Amendment, as in
Alexander, liability is established, and the question becomes
the scope of liability, or what harms the constitutional
violation proximately caused.”).
 MENDEZ V. COUNTY OF LOS ANGELES 27

VI

Lastly, Pederson argues that she cannot be held liable
because she did not search the shack. Pederson testified,
however, that after clearing the sheds on the south side of the
property, she told Sergeant Minster that she was “going to
check the rest of the yard,” including the shack. Minster
testified similarly. Pederson also approached the shack with
her weapon drawn alongside Conley. It is inconsequential
that only Conley opened the door and pulled the blanket back
from the doorframe while Pederson stood by—under our case
law, Pederson was an “integral participant” in the unlawful
search because she was “aware of the decision” to search the
shack, she “did not object to it,” and she “stood armed behind
[Conley] while he” opened the shack door. Boyd v. Benton
County, 374 F.3d 773, 780 (9th Cir. 2004).

VII

Because we affirm the district court’s conclusion that the
deputies are liable for the shooting following their
unconstitutional entry, the Mendezes’ cross-appeal is waived,
and we do not reach the issues therein. The district court
judgment is AFFIRMED insofar as it awards damages for the
shooting and for the unconstitutional entry. The award of $1
nominal damages for the knock-and-announce violation is
REVERSED, and we remand for that nominal damages award
to be vacated.

13-56686 is AFFIRMED IN PART and REVERSED
IN PART; and 13-57072 is DISMISSED AS MOOT.