(Photo: Mquirk/Dreamstime)

No American should forfeit his Fourth Amendment protection from the police when he picks up a gun in self-defense.

One day in October 2010, a man by the name of Angel Mendez was at his home, asleep on a futon next to his pregnant girlfriend. He’d built the home himself, and it almost redefined the word “modest.” It was little more than a one-room shack in the back yard of another person’s residence, with a blanket for a door. He awoke from his nap to see a person pulling back the blanket. He picked up his BB gun, and heard someone shout “gun!” before 15 rounds came flying at him. He was grievously injured, ultimately losing a leg. His unarmed girlfriend was also wounded.


It turns out the person who shot at Mendez was a police officer. Los Angeles County sheriff’s deputies Christopher Conley and Jennifer Peterson were looking for a parolee who was believed to be armed and dangerous. They did not have a warrant to search Mendez’s home, and they did not announce their presence or identity before accosting him. They entered, saw his BB gun, and started firing.

Lest you think this is a unique incident, in March I wrote about the terrible case of Andrew Scott. Like Mendez, Scott was an innocent man at home with his girlfriend when the police came. Like Mendez, he was mistaken by police for the armed and dangerous man they sought. They pounded on his door, but they didn’t have a warrant, and they didn’t announce themselves. Like any reasonable person, he was alarmed at the late-night disturbance and had no reason to expect the police were its source. So he grabbed his gun. When he opened his door, the police shot him dead in two seconds.


Neither Mendez nor Scott did anything wrong. They were both absolutely within their constitutional rights to pick up a weapon in response to the unidentified persons attempting to enter their homes. Yet Mendez, and Scott’s heirs, have so far lost in court, unable to collect any meaningful compensation from the police officers who shot them precisely because they exercised those rights.

Scott’s estate lost at the Eleventh Circuit Court of Appeals, which held that the doctrine of qualified immunity protected the officers from having to pay any compensation to the innocent victims of their mistaken and wrongful use of force. Mendez lost yesterday in the Supreme Court, which ruled unanimously against a quirky Ninth Circuit use-of-force rule that allowed excessive-force claims “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.” In other words, if the officers violated Mendez’s Fourth Amendment rights by unlawfully entering his home, they could be held liable for shooting Mendez even if the shooting itself might otherwise have been justified under existing law.


The Supreme Court found that the Ninth Circuit’s rule violated court precedent requiring lower courts to instead apply a “totality of the circumstances” approach to such cases, under which “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The Supreme Court then remanded the case back to the lower courts, where the deck is already stacked against Mendez. The court of appeals, after all, already ruled that the officers had qualified immunity from Mendez’s claim, and the trial court determined that Mendez’s decision to pick up the BB gun was a “superseding cause” that limited the damages he could collect.

Police use of force against an armed homeowner should be evaluated on Second Amendment grounds, not merely as an unreasonable search or seizure.


It’s time for a different approach. It’s time for Fourth Amendment jurisprudence to explicitly recognize and accommodate the Second Amendment. If the Second Amendment means anything at all, it means that I have a right to defend myself in my own home, where — as Justice Scalia noted in District of Columbia v. Heller — “the need for defense of self, family, and property is most acute.” Moreover, the Second Amendment exists in large part to protect the private citizen from state tyranny. It is odd indeed, then, that current law largely grants officers of the state the right to kill me in my own home even if I do nothing wrong. Indeed, the very act of exercising my Second Amendment rights — picking up a gun — makes it less likely that I will prevail in court.


There’s an old saying that a person would “rather be judged by twelve than carried by six.” In times of peril, the thinking goes, it’s better to risk a jury than to risk your life. But under modern jurisprudence, when the police barge in you’re likely to be carried by six and then judged wanting by one: You’ll die in the face of overwhelming firepower, and your estate’s case will be tossed right out of court by a judge.

This presents the homeowner — especially if he lives in a high-crime area where the need for a gun is most dire — with an impossible situation. In the event of a home intrusion, he has to identify the intruder before he picks up his gun or risk being shot dead instantaneously. If the cops make a good-faith mistake, the burden is on the homeowner. If the cops act improperly, as they did in both Scott and Mendez, the burden is still on the homeowner. Heads, they win; tails you lose.


What is to be done about this? Civil-rights jurisprudence must recognize the central legal truths of Heller and empower the original meaning of the Constitution. Police use of force against an armed homeowner should be evaluated on Second Amendment grounds, not merely as an unreasonable search or seizure. Agents of the state should be held liable for violations of Second Amendment rights when they kill or injure someone solely because he or she exercised those rights. Shooting an innocent man in his own home because he grabs a gun when an unidentified person pounds on his door or barges through it isn’t just an “unreasonable search or seizure.” It’s a direct violation of his clearly established right to keep and bear arms.

It’s not too much to ask police officers to obtain warrants and to knock and announce their presence in all but the most exigent circumstances. In both Scott and Mendez, there was no good reason for police not to identify themselves. Yet in both cases, a resident’s reasonable response to police failures undermined his efforts to hold them accountable for those failures in court. That is unacceptable. When a person enters my house unannounced, I should have the right to hold a gun in my hand. To argue otherwise is to eviscerate the Second Amendment.

READ MORE:

A Federal Appeals Court Goes to War against the Second Amendment

What Justice Gorsuch Might Mean for the Second Amendment

Why Would Anyone Want a Firearm?