U.S. Supreme Court Strikes Down The "Provocation Rule"

County of Los Angeles v. Mendez

16-369

581 U.S. ___ (2017)

On May 30, 2017, in an 8-0 decision, the Supreme Court struck down the 9th Circuit's Provocation Rule as a basis for Fourth Amendment liability on excessive force claims. It is important to note that while the Supreme Court invalidated the Provocation Rule specifically, it did not foreclose proximate causation of injury on the basis of Fourth Amendment violations for purposes of §1983 actions. These situations will still need to be analyzed for reasonableness and qualified immunity.

Provocation Rule

The Provocation Rule permitted an excessive force claim under the Fourth Amendment if an officer intentionally or recklessly provoked a violent confrontation, and if the provocation was an independent Fourth Amendment violation. The rule in effect, asked a court to make a backwards looking determination of whether there was some other Fourth Amendment violation leading up to the seizure, after a court has already determined that the seizure itself was reasonable. This determination of another violation would then confusingly render the determination of a reasonable seizure, to then be unreasonable. 

Facts

In October of 2010, Los Angeles County sheriffs were searching for Ronnie O'Dell, a parolee-at-large who was considered armed and dangerous. There was an arrest warrant for O'Dell and a confidential informant told sheriffs that O'Dell had been seen on a bicycle at the home of Paula Hughes in Lancaster. 

The deputies' plan was to search the Hughes residence for O'Dell and that several officers would approach the front door and two deputies would cover the back door. During the deputy briefing, it was announced that a couple, Angel Mendez and Jennifer Garcia, lived in the backyard at the Hughes home.  Of the deputies that were going to cover the back door, only one of them heard this announcement.

While sheriffs were speaking with Hughes and searching the residence from the front, the two deputies covering the back of the house, proceeded to search the rear of the residence with guns drawn. There was a one-room shack in the back amongst some other metal sheds and debris. The shack had a single doorway covered by a blue blanket, had an electric cord running into the shack, and had an air conditioner mounted to the side. When the two deputies approached the shack, they were unaware that the couple were napping inside. 

Mendez kept a BB gun, which resembled a small caliber rifle, for use against pests. One of the deputies pulled back the blanket, without announcing their presence and Mendez, thinking it was Hughes, picked up the BB gun to place it on the floor. The BB gun appeared to be pointing somewhat towards one of the deputies and the other deputy yelled "Gun!". This resulted in both of the deputies immediately opening fire. The couple was shot multiple times and suffered severe injury. The officers did not have a search warrant and O'Dell was not in the shack.

Procedural History

Mendez filed a lawsuit alleging Fourth Amendment violations for warrantless entry, knock-and-announce and excessive force. Both deputies were found liable for the knock-and-announce claim and one of the deputies was found liable for warrantless entry. The court awarded nominal damages on the claim because the pointing of the BB gun was a superseding cause for the damage from the shooting. As to the excessive force claim, the District Court reasoned that the officers were reasonable in the discharge of their firearms, believing that Mendez was pointing a gun at them. However, the District Court found that based on the Provocation Rule, the deputies were liable for excessive force and awarded $4 million in damages. 

The 9th Circuit Court of Appeals held that the deputies were entitled to qualified immunity on the knock-and-announce claim but that the warrantless entry of the shack violated clearly established law as to both deputies. As to excessive force, the ruling regarding the use of excessive force was affirmed on the Provocation Rule. The 9th Circuit alternatively stated that it was foreseeable that the deputies would encounter an armed homeowner when they entered the shack unannounced.

The U.S. Supreme Court vacated the judgment in regards to the Provocation Rule.  

Supreme Court's Ruling

The U.S. Supreme Court in Mendez very explicitly stated that the Fourth Amendment does not provide any basis for the 9th Circuit Provocation Rule.  The High Court reasserted that the reasonableness of a seizure is still analyzed under the Graham standard. The Graham standard asks whether under the totality of the circumstances, the use of force was objectively reasonable, balancing the individual's Fourth Amendment interests against the relevant government interests. It is specific to the facts of each case known to the officers at the time and may not be judged in hindsight. It is simple and straightforward that if a seizure is determined reasonable under the circumstances, then there is no excessive force.

Summary

The court invalidated the Provocation Rule as a basis for finding excessive force. The court did not invalidate that officers may still be liable for injuries based on proximate cause attributed to a Fourth Amendment violation. The Supreme Court on remand stated that the 9th Circuit should revisit whether damages in this specific case could be recovered for shooting injuries based on the failure to secure a warrant before the incident.  This is likely going to cause the reshuffling of claims which were previously based on the Provocation Rule to be reformulated under proximate cause theories of Fourth Amendment violations.  Asserting defenses of reasonableness and qualified immunity shall remain the same for Fourth Amendment excessive force claims.  

If your case is pending, either in the trial or appellate courts, and any liability has been found on the basis of the Provocation Rule, it should be revisited and reconsidered immediately.