Supreme Court to Review Ninth Circuit’s “Provocation Doctrine” in Excessive Force Cases


By: Wes Jackson

Imagine you’re a police officer searching for an armed suspect. Radio dispatch advises that an anonymous caller saw a suspicious man rush into a nearby home. You and your partner decide to enter and search the house, without a warrant and without knocking and announcing your presence. As you enter the dark house and conduct a search, you begin to doubt whether your entry into the home was legal under the Fourth Amendment. But before you have time to decide whether your search is constitutional, you see a flash and hear a loud “bang!” Just as you realize that your partner was shot, you see a man pointing a gun at you. Would you shoot him?

The United States Supreme Court will likely consider hypotheticals like this one when it reviews the Ninth Circuit’s decision in Los Angeles County, Cal. v. Mendez, 815 F.3d 1178 (9th Cir. Mar. 2, 2016). In Mendez, the Ninth Circuit applied its “provocation doctrine” to hold that an officer can be liable for civil damages stemming from a constitutionally reasonable use of force if the officer intentionally or recklessly provoked a violent confrontation and the provocation was itself an independent Fourth Amendment violation.

In the hypothetical above, shooting the armed suspect would be reasonable under the Supreme Court’s current use of force jurisprudence. But if the police officers had in fact violated the Fourth Amendment by entering the home without a warrant or without knocking and announcing their presence, the shooting officer could nevertheless be liable for the reasonable use of force under the “provocation doctrine” if the unconstitutional search provoked the suspect to shoot first.

The “provocation doctrine” is currently the exception rather than the rule—most other circuits limit their excessive force analysis to the officer’s conduct at the time the officer applied the force while ignoring other pre-seizure conduct. The Supreme Court’s ruling later this year could alter the legal analysis of excessive force cases by broadening how courts review officers’ conduct in excessive force claims. The attorneys at Freeman Mathis & Gary, LLP will monitor the case and report on upcoming developments.

For any questions, contact Wes Jackson at