No matter the legal issue, excessive forces cases are difficult for state and local governments to win because they often involve injury or death (in this case of a totally innocent person). To win one unanimously likely says something about the problematic nature of the legal theory.
In County of Los Angeles v. Mendez the Supreme Court rejected the “provocation rule,” where police officers using reasonable force may be liable for violating the Fourth Amendment because they committed a separate Fourth Amendment violation that contributed to their need to use force. The State and Local Legal Center (SLLC) filed an amicus brief asking the Supreme Court to reject the Ninth Circuit’s provocation rule.
Police officers entered the shack Mendez was living in without a warrant and unannounced. Mendez thought the officers were the property owner and picked up the BB gun he used to shoot rats so he could stand up. When the officers saw the gun, they shot him resulting in his leg being amputated below the knee.
The Ninth Circuit concluded that the use of force in this case was reasonable. But it concluded the officers were liable per the provocation rule–the officers brought about the shooting by entering the shack without a warrant. (The Ninth Circuit granted the officers qualified immunity for failing to knock-and-announce themselves.) The Ninth Circuit also concluded that provocation rule aside, the officers were liable for causing the shooting because it was “reasonably foreseeable” that the officers would encounter an armed homeowner when they “barged into the shack unannounced.” In an opinion written by Justice Alito, the Court rejected the provocation rule noting that its “fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” More specifically, “[a]n excessive force claim is a claim that a law enforcement officer carried out an unreasonable seizure through a use of force that was not justified under the relevant circumstances. It is not a claim that an officer used reasonable force after committing a distinct Fourth Amendment violation such as an unreasonable entry.”
The Supreme Court also rejected the Ninth Circuit’s causation analysis because it focused on what might foreseeably happen as a result of the officers’ failure to knock-and-announce instead of their failure to have a warrant. The officers’ failure to knock-and-announce wasn’t relevant as they received qualified immunity for it.
The SLLC urged the Supreme Court to reject the provocation rule because it holds officers liable even when they use reasonable force and punishes officers who may need to use force to save lives. The brief also argued that the Ninth Circuit’s causation analysis was flawed. The absence of a warrant in this case didn’t cause Mendez’s injuries because the exact same injuries would have occurred if the officers had performed the same search the same way with a warrant. The Ninth Circuit will consider this argument on remand.
Dan Collins, Mark Yohalem, and Seth Fortin of Munger, Tolles & Olson wrote the brief which was joined by the National Association of Counties, National League of Cities, International City/County Management Association, International Municipal Lawyers Association, California State Association of Counties, League of California Cities, and the National Sheriffs Association.
Author: Lisa Soronen
Executive Director
State & Local Legal Center