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Supreme Court to Consider Liability For “Provoking” Use of Force

Supreme Court to Consider Liability For “Provoking” Use of Force

Photo: Supreme Court of the United States; Wikipedia.

The outcome of Supreme Court Case 16-369 (Los Angeles County, Ca v. Mendez) could pose significant challenges for law enforcement—and police training.

Provoking Use of Force

Basically, the main issue involves whether law enforcement officers are entitled to qualified immunity or liable for “provoking” the need for use of force—according to the “provocation rule” created within the United States Court of Appeals for the Ninth Circuit.

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Here’s the background of the case…

Synopsis: Los Angeles County, Ca v. Angel Mendez, et al.

In October 2010, Los Angeles County Sheriff’s Department deputies conducted a warrantless search of a house looking for a wanted parolee. The deputies knocked and announced at the door of residence—and did not violate Fourth Amendment rights.

Deputies were told that the man they were looking for was in a shack in the backyard.

Two deputies of the team of 12 involved approached the shack and opened the door. Inside, they encountered Angel and Jennifer Mendez.

Court documents state that at the precise moment the deputies entered the shack, Angel Mendez was “holding only a BB gun that he kept by his bed to shoot rats” in the shed, and that he “was in the process of moving the BB gun so he could sit up in bed.”

The two deputies perceived an imminent deadly threat, and shot both Angel and Jennifer Mendez (who was pregnant at the time).

Deputies Not Liable for Excessive Force—But Violating The Provocation Rule

The district court found that the deputies did not use excessive force in shooting both Angel and Jennifer Mendez; and had “reasonably mistaken” the BB gun for a more lethal threat.

However, the court concluded that deputies were liable (not entitled to qualified immunity) since they violated a provocation rule of the circuit court—since the deputies failed to (re-) announce and knock before entering the shack, they “provoked” a deadly force encounter.

Simply put: the shooting was justified; but failing to knock and announce outside the shack was ultimately a Fourth Amendment violation.

Consequently, the deputies were not liable for using excessive force; they were liable for provoking the need to use deadly force according to the Ninth Circuit provocation rule.

Appeal To The Supreme Court

Skipping the complications and nuances of appeals and cross-appeals, the Supreme Court has granted a hearing of two key questions involved in the case:

—Whether the Ninth Circuit’s “provocation” rule should be barred as it conflicts with Graham v. Connor  regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C.§ 1983 for a violation of a plaintiff’s Fourth Amendment rights, and has been rejected by other Courts of Appeals?

—Whether, in an action brought under 42 U.S.C. § 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment?

A Case to Watch Closely…

As the Huffington Post reported, this case will likely draw the attention of court advocates. And is likely to inspire advocacy from police reformists, especially once a hearing is scheduled.

Indeed, this is a case that law enforcement personnel of every stripe and rank should monitor—since the Supreme Court’s ruling could potentially have a significant impact upon the liability involved in police work, and may require re-training and re-consideration of police tactics and procedures.

The United States Supreme Court grant of the hearing

The appeal filed March 2, 2016

Read more about the Mendez v. County of Los Angeles on

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