Ohio Patrolmen's Benevolent Association
U.S. Supreme Court Rejects “Provocation Rule”
Print Icon Mar 11, 2019

U.S. Supreme Court Rejects “Provocation Rule”

By Daniel Leffler

The Supreme Court in Graham v. Connor (1989), 490 U.S. 386, set forth the exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment.  “Determining whether the force used to effect a particular seizure is ‘reasonable’” requires balancing of the individual’s Fourth Amendmentinterests against the relevant government interests. Id., at 396.  The operative question in excessive force cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Id.  If there is no excessive force claim under Graham, there is no excessive force claim at all.

The Ninth Circuit Court of Appeals expanded the analysis to include a claim where the officer’s unconstitutional search and seizure provoked the excessive use of force.  Under the Ninth Circuit’s “Provocation Rule,” an officer could be held liable for excessive force, even if the use of force was reasonable under the circumstances, when there was a preceding Constitutional violation of the 4th Amendment.

The U.S. Supreme Court recently rejected the “Provocation Rule” in City of Los Angeles v. Mendez (2017), 581 U.S. ____, 2017 U.S. LEXIS 3396.  In that case, two County Deputies Christopher Conley and Jennifer Pederson were assigned to assist a task force searching for a parolee Ronnie O’Dell.  “The task force received word from a confidential informant that O’Dell had been seen on a bicycle at a home in Lancaster, California, owned by Paula Hughes, and the officers then mapped out a plan for apprehending O’Dell. Id., at 58a.  Some officers would approach the front door of the Hughes residence, while Deputies Conley and Pederson would search the rear of the property and cover the back door of the residence.  Id., at 59a.  During this briefing, it was announced that a man named Angel Mendez lived in the backyard of the Hughes home with a pregnant woman named Jennifer Garcia.  When the officers reached the Hughes residence around midday, three of them knocked on the front door while Deputies Conley and Pederson went to the back of the property.” Id., at 63a.  “Meanwhile, Deputies Conley and Pederson, with guns drawn, searched the rear of the residence.  The property included three metal storage sheds and a one-room shack made of wood and plywood.  Id., at 60a. Mendez had built the shack, and he and Garcia had lived inside for about 10 months. Id., at 61a.  The shack had a single doorway covered by a blue blanket. *** Mendez kept a BB rifle in the shack for use on rats and other pests.  Id., at 62a. The BB gun “closely resembled a small caliber rifle.” Ibid.

Deputies Conley and Pederson first checked the three metal sheds and found no one inside.  Id., at 65a.  They then approached the door of the shack. Id., at 66a.  Unbeknownst to the officers, Mendez and Garcia were in the shack and were napping on a futon.   Id., at 67a.  The deputies did not have a search warrant and did not knock and announce their presence. Id., at 66a. When Deputy Conley opened the wooden door and pulled back the blanket, Mendez thought it was Ms. Hughes and rose from the bed, picking up the BB gun so he could stand up and place it on the floor.   Id., at 68a.  As a result, when the deputies entered, he was holding the BB gun, and it was “point[ing] somewhat south towards Deputy Conley.”  Id., at 69a.  Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, discharging a total of 15 rounds. Id., at 69a–70a.  Mendez and Garcia “were shot multiple times and suffered severe injuries,” and Mendez’s right leg was later amputated below the knee.  Id., at 70a.  O’Dell was not in the shack or anywhere on the property.”  Ibid.

“The District Court found Deputy Conley liable on the warrantless entry claim, and the court also found both deputies liable on the knock-and-announce claim.  The District Court then addressed respondents’ excessive force claim.  The Court began by evaluating whether the deputies used excessive force under Graham v. Connor, 490 U. S. 386 (1989). The Court held that, under Graham, the deputies’ use of force was reasonable “given their belief that a man was holding a firearm rifle threatening their lives.”  But the Court did not end its excessive force analysis at this point.  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.” Id., at 111a. Based on this rule, the District Court held the deputies liable for excessive force and awarded respondents around $4 million in damages.” Id., at 135a–136a.

The Court of Appeals affirmed “the application of the provocation rule. The Court of Appeals did not disagree with the conclusion that the shooting was reasonable under Graham; instead, like the District Court, the Court of Appeals applied the provocation rule and held the deputies liable for the use of force on the theory that they had intentionally and recklessly brought about the shooting by entering the shack without a warrant in violation of clearly established law.” Mendez v. County of Los Angeles, 815 F. 3d, at 1193.

The U.S. Supreme Court held “that the Fourth Amendment provides no basis for such a rule. A different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.” 581 U.S. at *5.  “To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.”


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