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SCOTUS Rejects 9th Circuit’s “Provocation” Rule in 4th Amendment Excessive Force Cases

Justice AlitoOn Tuesday, May 30, 2017, the U.S. Supreme Court set aside a multi-million dollar verdict in a California shooting case.

LA police had burst into a shack without a search warrant and grievously shot two people.

At issue in County of LA v. Mendez was the 9th Circuit’s “Provocation” Rule which allows claims against officers whose conduct is otherwise reasonable if the police intentionally or recklessly provoked the incident.

The Shooting

In Mendez, the police were looking for a potentially armed fugitive and broke into the plaintiff’s shack without a warrant. When they entered, one of the plaintiffs was holding a BB gun which was “somewhat … towards” one of the officers.

One of the officers yelled, “Gun!” and the deputies immediately opened fire, discharging a total of 15 rounds. Plaintiffs, Mendez and Garcia, “were shot multiple times and suffered severe injuries.” Mendez’s right leg was later amputated below the knee. The fugitive the police were searching for was not even in the shack or anywhere on the property they were searching.

Plaintiffs Sue for 4th Amendment Violations

The plaintiffs sued the police under 42 U.S.C. §1983 for depriving them of their Fourth Amendment rights.

Police Force was Reasonable

The District Court held that under Graham v. Connor, 490 U.S. 386 (1989), the deputies’ use of force was reasonable given their belief that a man was holding a rifle threatening their lives. But the court did not end its excessive force analysis at this point.

The 9th Circuit’s “Provocation Rule”

Instead, the court turned to the Ninth Circuit’s provocation rule, which holds that“an officer’s otherwise reasonable (and lawful) defensive use of force is unreasonable as a matter of law, if (1) the officer intentionally or recklessly provoked a violent response, and (2) that provocation is an independent constitutional violation.”

In other words, even though the officers’ conduct in defending themselves was constitutionally reasonable, they could be held liable because they provoked the incident by breaking into the shack without a warrant.

Based on this rule, the District Court held the deputies liable for excessive force and awarded Mendez and Garcia approximately $4 million in damages.

Writing for a unanimous court, Justice Sam Alito rejected the 9th Circuit’s provocation rule. He wrote that “[t]he rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” He also noted that the provocation rule has been “sharply questioned” outside the Ninth Circuit, citing City and County of San Francisco v. Sheehan, 575 U. S. ___, ___, n. 4 (2015) (slip op., at 14, n. 4).

In reversing the award, Justice Alito wrote that 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. “By conflating excessive force claims with other Fourth Amendment claims, the provocation rule permits excessive force claims that cannot succeed on their own terms.”

Justice Alito acknowledged in his opinion that the provocation rule may be motivated by the notion that it is important to hold law enforcement officers liable for the foreseeable consequences of all of their constitutional torts. However, the court stressed that each Fourth Amendment claim must be decided on its own merits and that the unfortunate shooting, which was objectively reasonable because of self defense concerns, should not impose liability because the police provoked the altercation.

Case Remanded for Consideration of Other 4th Amendment Claims

Although the court reversed the multi-million dollar award, it did not foreclose all of the plaintiffs’ claims. It said that the plaintiffs were still able to recover damages for the police’s warrantless entry and remanded the case for a decision on this claim.

We note that Justice Alito was formerly a Third Circuit Judge sitting in Philadelphia and was appointed to the U.S. Supreme Court by President George W. Bush.

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