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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  1. ahaz

    Indeed, this case has the potential to significantly impact the way policing is conducted in this country. However, based upon the current make up of the court and the amount of deference given to LE, I doubt this appellant ruling will stand. But I do agree with the appellant ruling, there have been far too many cases where the actions of the officers created a deadly force scenario. The most egregious in recent memory are Tamir Rice and John Boyd. These young men were murdered because of failed police tactics. Rice because the officers failed to stop at a safe distance to ascertain existence of a threat. Boyd was shot on sight in Target for the same reasons. Not to mention the shootings that have occurred during the execution of dynamic entry and no-knock raids. I think the appellant ruling would cause LE to actually slow down, seriously evaluate the actions that are actually needed to perform a LE action, and improve their tactics. In today’s militarized environment, too many officers and department choose the overwhelming force option by default. In the state of Maryland, 92% of SWAT deployments are to issue search warrants, Utah showed similar use of their SWAT as well as a study done by the ACLU nationwide. In GA, a toddler was critically injured by a flash grenade when a home was raided based upon shoddy informant information for a supposed $50 drug buy. The person they were looking for was not present and was apprehended a short time later without need of SWAT. In Texas, officers were shot while serving a late night no knock warrant. The homeowner was rightfully acquitted because he legitimately feared for his life and the life of his family. These events were caused by poor decision making by the officers and departments executing those actions. It was their actions that caused the violence, injury and death in some cases. There are instances where police legitimately need qualified immunity during the execution of their duties. In those situations where they are negligent and found to be the cause of the violence, they need to be held accountable.

    • JS

      You give Tamir Rice and John Boyd as examples of screwups? Dear Lord, every occupation has its stinkers (thankfully LE has the tiniest percentage of them all). Every group of employees make honest mistakes. But those two cases?

      Tamir pointed a gun at a cop. Pretty cut and dry there. You don’t do that. Ever. In any situation. In any circumstance. Just no.

      John Boyd was a case where they went above and beyond levels even I ever would. Homeless crazy guy pulls two knives. That’s a clean shoot in EVERY law book. Instead of shooting, the PD instead tried negotiating, tried less than lethal bean bag rounds, a less than lethal Taser shot, tried a flashbang device, hell even a K9 dog. There isn’t a LTL option they DIDNT try LOL before finally being forced to use lethal force. Literally. There’s not any other choices…the PD tried literally everything…that’s just insincere to try to say anything other than the PD did the best they could given the suspects actions.

      The one thing you don’t realize (yea, I can tell you don’t know about police work or don’t do it for a living) is that an officers actions are a result of a suspects actions. Cops don’t just show up and do stuff (minus incredibly rare outliers). The suspect dictates police response. Please educate yourself on police behaviors and tactics before personally labeling any other cases as clusters. The two you named are unfortunately terrible and sad, but the actions in both were only a result of the suspects actions and reasonable given the poor situations in which the officers were forced into.

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