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Supreme Court overturns 9th Circuit 'provocation rule' that expanded police liability

The U.S. Supreme Court has overturned a “provocation rule” developed by the San Francisco-based 9th U.S. Circuit Court of Appeals that gave victims of police shootings an additional route to sue for alleged excessive force.



Justice Samuel Anthony Alito Jr. wrote the opinion (PDF) for a unanimous court. Justice Neil M. Gorsuch didn’t participate in the case.

The rule had held that police who use force not deemed excessive may be liable nonetheless because they provoked the victims to respond in a way that makes officers reasonably fear for their safety. Under the rule, the provocation had to be a separate Fourth Amendment violation.

The rule “provides a novel and unsupported path to liability” and is incompatible with the court’s excessive force jurisprudence, Alito wrote. “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” Instead, Alito said, such cases should be resolved using a proximate cause analysis.

Alito ruled in a case brought against Los Angeles County and two of its deputies. The two plaintiffs had been living in a shack when they were shot by police who raided the structure—without a warrant and without knocking—while looking for a wanted parolee.

Angel Mendez had a BB gun to kill rats, and he was holding it when the officers entered. Both officers opened fire, seriously wounding Mendez and his pregnant companion, a woman he later married. Mendez and his wife were awarded $4 million in damages.

Alito noted that the provocation rule may be motivated by the notion that it is important to hold police officers liable for the foreseeable consequences of their constitutional torts.

“However, there is no need to distort the excessive force inquiry in order to accomplish this objective,” Alito said. “To the contrary, both parties accept the principle that plaintiffs can—subject to qualified immunity—generally recover damages that are proximately caused by any Fourth Amendment violation.”

If the plaintiffs in the case before the court can’t recover on their excessive force claim, they still might be able to recover for injuries proximately caused by the warrantless entry, Alito said.

Alito said the issue should be revisited on remand.

The case is Los Angeles County v. Mendez.

Related article:

ABAJournal.com: “Supreme Court accepts police shooting case involving 9th Circuit’s ‘provocation’ rule”