Supreme Court Disapproves “Provocation Rule”


By: E. Charles Reed, Jr. & Edwin A. Treese

The Supreme Court held in Graham v. Connor that an officer making an arrest may only be held liable for the use of force which is objectively unreasonable in light of the totality of the circumstances. Until recently, however, the Ninth Circuit added a wrinkle to this analysis by adopting the “provocation” rule, which permitted recovery for the otherwise constitutional use of force, where an officer intentionally or recklessly provoked a violent confrontation and where the provocation itself was a constitutional violation.

The provocation rule has been sharply questioned outside the Ninth Circuit, prompting the Supreme Court to take up the case of Los Angeles County, Cal. v. Mendez, which our colleague Wes Jackson blogged about in detail here. In Mendez, a pair of Los Angeles County sheriff’s deputies made a warrantless entry to a shack while looking for an armed fugitive. They startled the shack’s occupants, one of whom grabbed what appeared to be a rifle. The deputies, afraid for their lives, opened fire and shot both occupants of the shack. Both survived, but one occupant had their leg amputated below the knee because of the shooting. As it turned out, neither occupant was the armed fugitive the deputies were looking for, and the “rifle” was in fact a BB gun. Both occupants filed suit. Following a bench trial, the trial court held that the officers violated the Fourth Amendment by entering the shack without a warrant and without properly “knocking and announcing” their entry, but were entitled to qualified immunity on the latter claim. As to the excessive force claim, the trial court found that the defendants had not used objectively unreasonable force because, when they opened fire, they were confronted with a subject who appeared to be armed with a gun and they were afraid for their lives.

In most circuits, that would have ended the analysis. In the Ninth Circuit, not so much. Although the trial court concluded that the officers had not violated the Graham standard, it applied the Ninth Circuit’s provocation rule and found that the officers were liable for excessive force based on their earlier Fourth Amendment violation arising from the entry into the shack. The trial court awarded a total of approximately $4 Million in damage to the two victims. The Ninth Circuit subsequently affirmed based on the provocation rule – but also held that “basic principles” of proximate cause would support liability because it was foreseeable that the officers would encounter an armed homeowner when they “barged into the shack unannounced.”

The Supreme Court granted certiorari to address the limited question of whether the provocation rule is consistent with its excessive force jurisprudence – and has now held that it is not. The Court disapproved the provocation rule because it improperly conflated the excessive force analysis of Graham with the analysis of separate and distinct Fourth Amendment claims. Put simply, the Court held: “[t]hat is wrong.  The framework for analyzing excessive force claims is set out in Graham. If there is no excessive force claim under Graham, there is no excessive force claim at all. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.” Having disapproved the rule, the Court remanded the case back to the Ninth Circuit for further consideration.

Two issues in the case are noteworthy. First, the Court expressly declined to rule on an argument that the “totality of the circumstances” analysis required by Graham should include, as one of the “circumstances”, analysis of any prior unreasonable conduct by police. The Ninth Circuit and/or the trial court may therefore choose to revisit the original determination that the force used by the officers was, in fact, objectively reasonable. If they do, it would seem that a proper application of Graham should support an argument that the officers were entitled to qualified immunity.

Second, the Court instructed the Ninth Circuit to reconsider its proximate cause analysis, by focusing on whether the failure to obtain a warrant from the outset proximately caused the shooting. This may open the window for the Ninth Circuit or trial court to keep the case alive. We will continue to monitor the case for significant developments in the future.

For any questions, please contact Charles Reed at [email protected] or Andy Treese at [email protected].