High Court Dumps “Provocation” Theory, Narrowing Police Liability

The Supreme Court voted 8-0 to overturn a decision that had established a "provocation" rule as an independent basis for suing for injuries caused by police actions. 

The Supreme Court voted 8-0 to overturn a decision that had established a "provocation" rule as an independent basis for suing for injuries caused by police actions. 

By Christopher Zoukis

The U.S. Supreme Court has unanimously rejected a “provocation” rule used by the San Francisco-based Ninth Circuit that gave victims of excessive use of police force a way to overcome officials’ claims of immunity to lawsuits.

In its May 30 decision in Los Angeles County v. Mendez, the high court voted 8-0 to overturn Ninth Circuit decisions establishing a “provocation” rule as an independent basis for suing for injuries inflicted by police actions. The opinion written by Justice Samuel Alito called it a “novel and unsupported path to liability” not grounded in the Fourth Amendment.

The case grows out of an October 2010 search by the Los Angeles County Sheriff’s Department for a parolee thought to be armed and dangerous. Having received a tip that the man they were searching for was at a particular residence, sheriff’s deputies went to the front door and questioned the homeowner, while two other officers went to search other parts of the property, focusing on a backyard that held numerous junked cars, storage sheds and a jerry-built 7’ x 7’ wooden and plywood shack built by and lived in by a homeless couple, Angel Mendez and his fiancée.

Despite not having a warrant, and without announcing themselves or knocking, the deputies entered the shack where Mendez and his girlfriend had been napping. When he arose, Mendez was holding a BB gun, which he kept in the shack to shoot rats and other vermin. It resembled a small-caliber rifle.

Seeing the silhouette of a man holding a weapon, both deputies opened fire, injuring both residents. Mendez’s wounds necessitated the below-the-knee amputation of his right leg. The victims sued the county and three officers for excessive force, and won a $4 million jury verdict.

On appeal, California’s a three-judge panel of the Ninth Circuit upheld the verdict, citing its “provocation” doctrine, which says that even when they have not used excessive force, they can still be held liable if their conduct provoked victims to act in a way that led police to respond with force causing injury to the victims.

In his opinion, Alito noted that the Supreme Court’s rulings on excessive force call for looking at the totality of circumstances to determine whether, at the time the force was used, it was reasonable for the police to do so. In his view, California’s provocation rule unacceptably allows other police misconduct – such as the failure to obtain a search warrant – to bypass the qualified immunity police might otherwise have, and thus “manufacture an excessive force claim where one would not otherwise exist.” So, according to the Supreme Court, a separate Fourth Amendment violation cannot transform “reasonable use of force into an unreasonable seizure.”

While the provocation rule might be based on a desire to hold police responsible for the likely results of constitutional torts they commit, Alito noted, it is unnecessary to “distort the excessive force inquiry,” as the provocation rule does, since plaintiffs can generally recover, subject to qualified immunity, damages where a constitutional violation was the proximate cause of their injuries. The opinion also ruled that the Ninth Circuit erred in holding the failure to obtain a warrant could be a proximate cause of the victims’ injuries.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.