On May 30, 2017, the United States Supreme Court issued its opinion in County of Los Angeles v. Mendez, 581 U.S. __,  2017 U.S. LEXIS 3396 (2017), for which we submitted an amici curiae brief on behalf of the California State Sheriffs’ Association, the California Police Chiefs Association, and the California Peace Officers’ Association.  The Supreme Court overturned the Ninth Circuit’s application of its previously criticized “Provocation Rule,” which had permitted liability as to officers’ otherwise reasonable uses of force, when an officer intentionally or recklessly provoked a violent confrontation or otherwise caused the need for the use of force based on a separate and independent Fourth Amendment violation.

Factual Background

In October 2010, Los Angeles County Sheriffs’ Deputies shot and injured two individuals, Angel Mendez (“Mendez”) and his then-girlfriend, now-wife Jennifer Garcia (“Garcia”), who were living in a shack in the backyard of a residence being searched by deputies.  Deputies had received a tip that a parolee-at-large was at the residence.  They ultimately obtained consent to search the house, and deputies were then in the process of clearing the rear yard, which was full of debris and abandoned vehicles. After searching several other storage sheds, the deputies in the rear yard opened the door to the wood and plywood shack in which Mendez and Garcia resided and were resting on a futon.  At the moment that officers peered into the shack, Mendez was moving a BB gun that resembled a rifle, which he often used to shoot vermin.  Officers opened fire due to the weapon being pointed at them.  Mendez and Garcia brought civil rights violation claims against the County and deputies based the assertion of being subject to a warrantless search/entry, a failure to knock and announce before entry, and excessive force.  The District Court found only nominal liability on the first two claims and, despite finding the deputies’ force was constitutionally reasonable, found them liable for excessive force based on application of the Ninth Circuit’s Provocation Rule.  Damages were awarded in the amount of $4 Million.

Ninth Circuit Decision

On review, the Ninth Circuit reversed on the knock and announce liability, finding that it was not clearly established law that officers must re-announce their entry (knock-and-announce their presence again) when entering a separate structure from the residence that is on the curtilage (which is defined as the area immediately adjacent to a home).  Since deputies would not have known that they needed to separately knock and announce again at the shack (a structure within the curtilage surrounding the residence), they were found to be entitled to qualified immunity.  Nonetheless, the Ninth Circuit still found officers liable for their unconstitutional entering of the shack without a warrant.  The Ninth Circuit used its “Provocation Rule” to find that, despite the reasonableness of the force used at the time of the shooting of Mendez and Garcia, the deputies had created the situation that led to the shooting – the very need for the use of force.

Supreme Court’s Decision

The Supreme Court rejected outright the Ninth Circuit’s Provocation Rule, which had already been questioned in other circuits.

Instead, the Supreme Court’s opinion made clear confirmation of the Fourth Amendment’s standard for evaluating use of force: whether the force was reasonable under the totality of the circumstances, as established by the Court in Graham v. Connor, 490 U.S. 386 (1989).  Slip Op., at 6.  And the Court reaffirmed that this “inquiry is dispositive:  When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.”  Slip Op., at 7.

The Court concluded that “[t]he [provocation] rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”  Slip Op., at 6.  In other words, liability was ultimately found against deputies, by the Ninth Circuit under this abolished rule, based on an excessive force claim, due to the fact that the deputies had been found to have “committed a separate constitutional violation (the warrantless entry into the shack).”  Slip Op., at 8 (emphasis added).  Even though the Ninth Circuit limited application of the Provocation Rule to additional Fourth Amendment violations “that in some sense ‘provoked’ the need to use force” or “’create[d] a situation which led to’ the use of force,” the Supreme Court still resoundingly rejected this concept as “an unwarranted and illogical expansion of Graham.”  Slip Op., at 8-9 (changes omitted from original).

The Supreme Court remanded the matter to the courts below, and hinted at some ways that liability could still potentially be established without the abolished Provocation Rule.  First, the Court stated that it did not determine the new issue raised by Mendez and Garcia that the analysis of reasonable force under Graham could take into account unreasonable conduct prior to the use of force.  Second, liability could still be considered as to the warrantless entry into the shack, if the injuries sustained could be considered to have been directly caused by that constitutional violation (as opposed to the excessive force.  These questions were left open by the Supreme Court’s Opinion, and could potentially be determined later in the case on remand.


The Supreme Court’s Opinion supports the long-standing and straightforward analysis applicable to uses of force as articulated in Graham v. Connor, 490 U.S. 386 (1989) — the objective reasonableness of an officer’s actions, taking into account the totality of the circumstances at the time of the use of force, is what matters in determining whether an officer’s use of force is constitutionally reasonable.  Specifically, the Ninth Circuit’s Provocation Rule is no longer viable, and it is thus improper for a court to look to other constitutional violations by an officer in order to undermine qualified immunity or to support a finding of unreasonable and excessive force.

This result is an affirmation of the Supreme Court’s previously stated rule for analysis of claims of excessive force.  What matters is the reasonableness of the force applied under the circumstances presented to an officer, regardless of other constitutional violations that may have been alleged or found to have occurred.  We will have to await further determinations by the Ninth Circuit or the District Court on remand in this case in order to see if any liability ultimately is found on any other grounds and if other issues may develop as to the points left potentially open by the Supreme Court.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at jrt@jones-mayer.com.

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