Provocation Rule Tag

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Posted 30 May 2017 in Case Notes, IMLA Briefs
No matter the legal issue, excessive forces cases are difficult for state and local governments to win because they often involve injury or death (in this case of a totally innocent person). To win one unanimously likely says something about the problematic nature of the legal theory. In County of Los Angeles v. Mendez the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The State and Local Legal Center (SLLC) filed an amicus brief asking the Supreme Court to reject the Ninth Circuit’s provocation rule. Police officers entered the shack Mendez was living in without a warrant and unannounced. Mendez thought the officers were the property owner and picked up the BB gun he used to shoot rats so he could stand up. When the officers saw the gun, they shot him resulting in his leg being amputated below the knee. The Ninth Circuit concluded that the use of force in this case was reasonable. But it concluded the officers were liable per the provocation rule--the officers brought about the shooting by entering the shack without a warrant. (The Ninth Circuit granted the officers qualified immunity for failing to knock-and-announce themselves.) The Ninth Circuit also concluded that provocation rule aside, the officers were liable for causing the shooting because it was “reasonably foreseeable” that the officers would encounter an armed homeowner when they “barged into the shack unannounced.” 

Posted 07 Dec 2016 in Case Notes, Commentary
It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet, the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack thereby “provoking” Mendez. (Mendez kept a BB gun in his bed to shot rats when they entered the shack. Mendez claimed that when the officers entered the shack he was in the process of moving the BB gun so he could sit up in bed.) In Los Angeles County v. Mendez the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “Where 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.”