Provocation Rule abolished by SCOTUS


In a May 30, 2017 opinion, the Unites States Supreme Court stopped in its tracks a doctrine invented by the Ninth Circuit:

“If law enforcement officers make a “seizure” of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination, may the officers nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force? The Ninth Circuit has adopted a “provocation rule” that imposes liability in such a situation.

We hold 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.”

County of Los Angeles, et al., v. Angel Mendez, et al., Supreme Court of the United States, No. 16–369

As the opinion’s syllabus tells us, the Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived. Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times. Officers did not find the parolee in the shack or elsewhere on the property. Mendez and Garcia sued Deputies Conley and Pederson and the County under 42 U. S. C. §1983, pressing three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable under Graham v. Connor, 490 U. S. 386, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,” Billington v. Smith, 292 F. 3d 1177, 1189. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.

But the Unites States Supreme Court held that the Fourth Amendment provides no basis for the Ninth Circuit’s “provocation rule.”   The court first reasoned that the provocation rule is incompatible with the Supreme Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment citing to Graham, supra, at 395. The operative question in such cases is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure.” Tennessee v. Garner, 471 U. S. 1, 8–9. When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim. The provocation rule, however, instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that “mistakenly conflates distinct Fourth Amendment claims.” The proper framework is set out in Graham. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “creat[e] a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally. Billington v. Smith, 292 F. 3d 1177, 1189 (CA9 2002).  Neither limitation, however, solves the fundamental problem: namely, that the provocation rule is an unwarranted and illogical expansion of Graham. In addition, each limitation creates problems of its own. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure.  The court stated quite directly: “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”

As the syllabus of the opinion continues, “there is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts. Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation.”

As a firm that specializes in defending police officers in alleged excessive force cases, Daley and Heft is pleased that the Supreme Court has eliminated the Ninth Circuit’s attempted expansion of Fourth Amendment law.  We have already seen the attempted use of the provocation rule by plaintiff’s attorneys to argue that maybe the actual shooting was justified, for example, but the officer created the situation that provoked the suspect to take the action he did that caused the officer to shoot.  We will now be able to eliminate such efforts in Fourth Amendment claims and properly focus on the immediate need for the officer to use deadly force or other use of force.