Excessive Police Force and the Provocation Rule

In County of Los Angeles v. Mendez, the U.S. Supreme Court rejected the provocation rule, which some courts had used in police force cases.

By , Attorney

The provocation rule was a principle some courts used in lawsuits for excessive force by the police. According to the rule, there would be a valid excessive force claim where, through a Fourth Amendment violation, the police intentionally or recklessly provoked a violent confrontation. Under the rule, even if the use of force was reasonable, the police could be on the hook. They would be liable if they somehow violated the Fourth Amendment—which prohibits unreasonable searches and seizures—in the lead-up to the confrontation.

The U.S. Supreme Court did away with the provocation rule in a 2017 opinion, County of Los Angeles v. Mendez. (581 U. S. ____.) The Court did not, however, say that Fourth Amendment violations are irrelevant when the police have used force that might have been in some sense reasonable.

Mendez Case: Warrantless Entry, Then Force

The facts in the Mendez case began with a tip from a confidential informant, about a reportedly armed-and-dangerous parolee with an outstanding felony arrest warrant. The informant gave word to a sheriff task force that the parolee had been seen at a particular home.

Officers on the task force arrived at the home in the middle of the day. Three knocked on the front door; two went to the rear of the property. After an encounter with the homeowner, the officers at the front searched the main house. Neither they nor the officers headed for the back would find the man they were looking for.

Guns drawn, the two deputies assigned to the rear began to look around. They came upon a one-room shack with a wood-blanket combination for a front door. A man named Mendez and his wife, Garcia, were in the shack, taking a nap on a futon.

The two deputies didn't have a search warrant, nor did they knock and announce themselves. As one opened the wooden door and pulled back the blanket, Mendez rose from the futon and picked up a BB gun he used for pest control. He reportedly thought the person entering was the property owner and had picked the weapon up so he could place it on the floor.

Thus, the scene: officers entering the shack with guns in hand as Mendez held a BB gun that looked like a small-caliber rifle that happened to be oriented toward the general direction of the first officer to enter. That officer yelled, "Gun!" The two deputies then fired off 15 rounds, hitting Mendez and Garcia multiple times. Both husband and wife were severely injured. Mendez would lose most of one of his legs.

The End of the Provocation Rule

Mendez and Garcia (the plaintiffs) brought a Section 1983 lawsuit against the deputies who shot them and the county that employed the deputies. The trial court found that the officers' use of force was reasonable in that the two thought that Mendez was holding a firearm and posing a threat to their lives. But the trial court nevertheless awarded the plaintiffs approximately $4 million in damages for their excessive force claim—because of the provocation rule.

The Ninth Circuit Court of Appeals, the next court to get the Mendez case, agreed with the award of damages to the plaintiffs, again according to the provocation rule. The court found that the shooting, even if reasonable in the moment, had to be considered unreasonable because the officers recklessly violated the Fourth Amendment by entering the shack without a warrant.

Mendez next came to the U.S. Supreme Court, where all eight Justices considering the case rejected the provocation rule and sent the case back to the lower courts.

Plaintiffs Have No Relief, No Recourse?

Plenty criticized the Mendez decision. It was inconceivable to many that the police wouldn't be liable. After all, officers went unannounced into a home without a warrant and shot the residents, who weren't bothering anyone.

But the Supreme Court in Mendez was very careful. The Justices allowed for the possibility that the plaintiffs could win damages—just not under the provocation rule.

The Court essentially took the position that one can't say that force by the police was reasonable and at the same time have the plaintiffs win on the grounds that the force was unreasonable. But the Court did indicate that circumstances like those in the Mendez case—officers unreasonably creating a situation where they thought they needed to use force—could make the use of force unreasonable.

The Supreme Court said that, even if the Mendez plaintiffs couldn't win their excessive force claim, they might be able to win on the theory that their injuries came directly from the officers' entering their home without a warrant. The Court did, after all, accept the general premise that people can successfully sue law enforcement for damages that are proximately caused by a Fourth Amendment violation.

Talk to a Lawyer

As the Mendez decision shows, the law on excessive force can be very complex, and cases depend on their facts. If you want to know whether you have a lawsuit, consider talking to a lawyer. An attorney with experience in cases like yours should be able to explain the applicable law and your options. It could be, for instance, that the law in the court you would sue in gives a basis for winning that isn't available under the federal constitution.

If you face criminal charges, consult an experienced criminal defense lawyer.

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