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Supreme Court accepts police shooting case involving 9th Circuit's 'provocation' rule

The U.S. Supreme Court on Friday agreed to decide a case involving liability for a police shooting in which the police are accused of provoking a violent confrontation.

At issue is the viability of the “provocation” rule adopted by the San Francisco-based 9th U.S. Circuit Court of Appeals, according to the cert petition (PDF). The rule holds 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. Lyle Denniston Law News, Bloomberg News and Reuters have stories.

The appeal by Los Angeles County and two of its deputies seeks to overturn a $4 million award to two people who were 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 officers entered. Both officers opened fire, seriously wounding Mendez and his pregnant companion.

The 9th Circuit said the police search of the shack violated clearly established Fourth Amendment law, and police were liable “under basic notions of proximate cause” as well as its provocation rule.

The Supreme Court agreed to consider two issues in the cert petition. The first issue is whether the provocation rule should be barred, The other is whether an incident giving rise to a reasonable use of force is an intervening event that breaks the chain of causation from a prior unlawful entry.

The case is Los Angeles County v. Mendez. The SCOTUSblog case page is here.