In an October 2010 use of force case arising out of an incident in Los Angeles County, the Ninth Circuit attempt to expand officer liability with the “Provocation Rule” was struck down by the United States Supreme Court. However, the Supreme Court’s ruling tossed the ball back to the Ninth Circuit for its assessment of “proximate cause” and “ foreseeability” with regard to the damages allegedly suffered by a plaintiff.
This new Fourth Amendment violation would have rendered an otherwise reasonable use of force or seizure unreasonable if (1) the officer “‘intentionally or recklessly provokes a violent confrontation’ and (2) ‘the provocation is an independent Fourth Amendment violation.’” Fortunately, the United States Supreme Court eviscerated that fictitious extension of Graham in its opinion in County of Los Angeles v. Mendez, 581 U.S. ___ (May 30, 2017).
In Mendez, Los Angeles County Sheriff Deputies were searching for a wanted parolee that a confidential informant had told them was seen riding his bike in front of a local residence. The deputies responded to that residence and asked the owner for permission to search the residence. They did not have a warrant to search the home. While deputies were speaking with the homeowner, they learned about a “shack” at the back of the home. As the deputies at the front door were gathering more information about the “shack” and its occupants, two other deputies entered the curtilage (area where one would have a reasonable expectation of privacy) of the property and began walking towards the “shack” looking for the parolee. The homeowner did not give permission for the residence to be searched.
The two deputies in the back proceeded to enter the door of the shack. Mr. Mendez and his pregnant girlfriend were napping on a futon at the time of the entry. Mr. Mendez proceeded to sit up with what appeared to be a rifle in his hand and pointed it at the deputies. One deputy quickly shouted “Gun!” wherein he and a second deputy shot at the Mendezes causing multiple injuries. Mr. Mendez and his girlfriend were awarded nearly $4 million dollars by the trial court based on the “provocation rule” even though the deputies’ use of force was found to be reasonable.
From an agency and officer’s perspective, this rule would create the dichotomy of a “seizure” or “search” being found reasonable under Graham, but there still being a finding of responsibility for damages. And, the evaluation would not end there. The pre-seizure, subjective, conduct for the incident may then also give rise to an independent Fourth Amendment violation.
The Ninth Circuit’s attempted expansion of Graham would require a court to first determine if a search or seizure was reasonable and then look to see if there was a separate constitutional violation. This could potentially set a precedent for witch-hunts in all use of force cases with unimaginable damages verdicts, wherein, the underlying “search” or “seizure” was found to be reasonable under the Fourth Amendment.
The Supreme Court’s ruling allows agencies and officers a chance to breathe and realize the Ninth Circuit’s “Provocation Rule” has been shot down, for now. As Justice Samuel Alito cautioned, the “rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” However, all is not yet cured as the Supreme Court left untouched the issue of “proximate cause” and unreasonable police conduct prior to the use of force that foreseeably created a need to use it. This issue was remanded to be addressed by the Ninth Circuit and we now must await the Ninth Circuit’s finding.
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