Supreme Court: No More Provocation Rule

In County of Los Angeles v. Mendez, 16-369, 2017 WL 2322832 (U.S. May 30, 2017), the Supreme Court rejected the Ninth Circuit’s provocation rule, see Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).  Under that rule, an officer was liable for injuries resulting from a use of force—even if found to be reasonable—if the officer intentionally or recklessly provoked the violent confrontation and the provocation amounted to a stand-alone Fourth Amendment violation.  In Mendez, officers unlawfully entered a make-shift shack and shot a person inside who was holding a gun.  The Ninth Circuit held that the use of force was reasonable, but affirmed a $4 million verdict for injuries sustained as a result of the shooting because the officers unlawfully entered the shack without a warrant.  The Supreme Court reversed, holding that the provocation rule is “incompatible with our excessive force jurisprudence” because it “uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”  If the force used was reasonable, there can be no excessive force claim.

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