As a Matter of Law and Policy, the Ninth Circuit’s “Provocation Rule” Must Stand

This term, the U.S. Supreme Court will decide whether the judicially created “provocation rule” comports with the Court’s precedents.[1] The action under review, Mendez v. County of Los Angeles, involves an incident that occurred in the desert town of Lancaster, California, where sheriff deputies unlawfully entered a homeless couple’s dwelling and shot the individuals repeatedly. By invoking the provocation doctrine, the trial court held the deputies (and thus, the County) liable. As Mendez demonstrates, the provocation rule helps realize the important principle that law enforcement should be held accountable for the harms caused by their flagrant civil rights violations. And because the rule merely makes explicit what courts generally hold to be self-evident – that parties who commit unlawful conduct are liable for the resulting injuries – the Supreme Court should uphold the doctrine.

On October 1, 2010, Los Angeles County sheriff deputies received a tip that a fugitive was spotted outside the home of Paula Hughes. Despite failing to obtain a search warrant, several deputies approached Ms. Hughes’ home and entered her backyard. There they spotted a small shack occupied by Hughes’ high school friend, Angel Mendez, and his pregnant girlfriend, Jennifer Garcia.[2] Due to their homeless status, Ms. Hughes permitted the couple to erect and live in the shack.

After surrounding the dwelling, the deputies swung the door open without providing a “knock-and-announce” as required by Wilson v. Arkansas.[3] Understandably startled, Mr. Mendez reached for his BB gun. Deputies Christopher Conley and Jennifer Pederson then fired fifteen rounds into the shack, striking and severely injuring both individuals. Mr. Mendez’s wounds ultimately required the amputation of his right leg.

Following a bench trial, the Central District of California entered a $4 million judgment against the County, holding that the warrantless search violated the Mendezes’ Fourth Amendment rights and proximately caused their injuries.[4] In so holding, the court invoked the Ninth Circuit’s “provocation doctrine,” which provides that an officer may be held liable for an “otherwise defensive use of deadly force” where he recklessly provokes a violent encounter, if the provocation is an “independent Fourth Amendment violation.”[5]

After the Ninth Circuit unanimously affirmed,[6] the Supreme Court granted certiorari this past December to determine whether this doctrine can be squared with the Court’s landmark decision in Graham v. Connor, which articulates the test for evaluating excessive force claims against law enforcement.[7]

The County avers that, under Graham, if a use of force is found to be reasonable, it necessarily follows that the officer is not liable for violating the Fourth Amendment. Thus, so the County concludes, the provocation doctrine conflicts with Graham by permitting courts to find liability for justifiable force.

However, this argument misses the mark.

The Graham decision lends no support for the proposition that reasonable force precludes liability under any theory; it merely provides that reasonable force precludes liability for excessive use of force.[8] The County, quite plainly, reads Graham too broadly.

It cannot be understated that Graham merely governs claims of excessive force, which – importantly – is not at issue here. Indeed, the deputies were found not liable for acting with excessive force, and this issue was not raised on appeal.[9] Rather, the deputies were held liable for their warrantless entry, which, per the lower courts, proximately caused the plaintiffs’ injuries.

This theory rests on the well-established notion that constitutional torts are to be determined by basic tort principles, including proximate cause.[10] For instance, while sitting on the Third Circuit, Justice Alito ruled that a law enforcement officer that unlawfully enters a suspect’s home is liable for harm “proximately” caused by his tortious conduct.[11] Accordingly, after establishing that the deputies’ entry was unconstitutional, the Mendezes’ only remaining burden was to demonstrate that the entry proximately caused their injuries.

The lower courts unsurprisingly had little difficulty finding that the proximate cause prong was met. The deputies’ warrantless and unannounced entry reasonably prompted Mr. Mendez to reach for his weapon, which, in turn, caused the deputies to shoot the Mendezes. Each link in the causal chain was the foreseeable consequence of its preceding link.[12] Indeed, in McDonald v. United States, Justice Jackson discussed the “grave troubles” police may encounter after unlawfully entering a suspect’s home, including the resident’s “natural impulse” to shoot.[13]

Under the circumstances, the provocation doctrine merely provided the Mendezes with an alternate vehicle (i.e., one apart from excessive force) for seeking relief. It would be absurd for a court to reason that, because one avenue for proving liability is foreclosed, all others must be, as well. Consider the following: A retail store manager pursues a shoplifter exiting the store with stolen goods. The manager forcefully grabs the shoplifter by his neck, rupturing a disc. Because the manager’s detention is privileged,[14] the shoplifter likely cannot sustain an action for false imprisonment. Does this mean he is similarly barred from proving battery and recovering for his injuries? Of course not. The County’s theory compels the same answer: that the Mendezes failed to establish liability for unreasonable force is inapposite to the conclusion that the deputies unlawfully entered the Mendezes’ dwelling and thereby caused their injuries.

As this case illuminates, the provocation rule is wholly reconcilable with the Graham doctrine.[15] Thus, when the Supreme Court rules on the issue later this term, it should affirm the Ninth Circuit accordingly.

The significance of Mendez, however, is not limited to its legal consequences. Should the Court strike the doctrine down, the decision would deliver yet another blow to the pervasive national push for enhancing police accountability. Indeed, such a holding would further immunize law enforcement officers that infringe upon the rights of the very civilians they are obliged to protect. On the other hand, an order upholding the provocation rule would provide a disincentive for officers to neglect their Constitutional responsibility to obtain search warrants, and it would help ensure that police are held accountable when they do. Lastly, it bears highlighting that the position for which I advocate would be the just decision. After all, to no fault of their own, the Mendezes were shot repeatedly due to the deputies’ flagrant civil rights violations, which saddled the couple with past and future medical bills amounting to nearly $2 million, and inflicted upon them severe and permanent injuries. [16]

 

[1] See Mendez v. Cnty. of Los Angeles, 815 F.3d 1178 (9th Cir. 2016), cert. granted in part, (U.S. Dec. 2, 2016) (No. 16-369) (“Mendez II”).

[2] Because Ms. Garcia and Mr. Mendez have since married, they will be referred to collectively herein as the “Mendezes.”

[3] Wilson v. Arkansas, 514 U.S. 927, 931-34 (1995).

[4] Mendez v. Cnty. of Los Angeles, No. CV 11-04771-MWF (PJWx), 2013 WL 4202240, at *24, *33 (C.D. Cal. Aug. 13, 2013), aff’d in part, rev’d in part, 815 F.3d 1178 (9th Cir. 2016) (“Mendez I”) (“Every reasonable officer in Deputies Conley and Pederson’s position would have understood that what they were doing violated . . . Mr. and Mrs. Mendez’s right to be free from an unreasonable search . . . .”). See also Steagald v. United States, 451 U.S. 204, 211-12 (1981) (warrantless entry into a home is unreasonable absent exigent circumstances).

[5] Billington v. Smith, 292 F.3d 1177, 1189 (9th Cir. 2002).

[6] See Mendez II, 815 F.3d at 1195.

[7] Graham v. Connor, 490 U.S. 386, 396 (1989).

[8] See id. at 388 (“This case requires us to decide what constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force . . . . We hold that such claims are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard . . . .”).

[9] Mendez I, 2013 WL 4202240, at *25.

[10] See, e.g., Monroe v. Pape, 365 U.S. 167, 187 (1961) (providing that 42 U.S.C. § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions”); Malley v. Briggs, 475 U.S. 335, 344 n.1 (1986); Brower v. Cnty. of Inyo, 489 U.S. 593, 599 (1989).

[11] Bodine v. Warwick, 72 F.3d 393, 400 (3d Cir. 1995).

[12] See, e.g., White v. Roper, 901 F.2d 1501, 1506 (9th Cir. 1990) (providing that foreseeable intervening causes do not supersede the defendant’s liability).

[13] McDonald v. United States, 335 U.S. 451, 460-61 (1948) (Jackson, J., concurring).

[14] Restatement (Second) of Torts § 120A (Am. Law. Inst. 1965).

[15] Notably, in expounding upon the provocation rule, the Ninth Circuit expressly stated that the doctrine must be applied in a manner consistent with Graham. See Billington, 292 F.3d at 1190 (emphasis added).

[16] See Mendez I, 2013 WL 4202240, at *37.

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James is a 2L at Harvard Law School. He is originally from California, and completed his B.S. at San Diego State University and M.A. at Arizona State University. Prior to law school, he worked for a small civil rights firm and a public defender's office. Most recently, he worked as a law clerk for the American Civil Liberties Union of Southern California. His research interests include police misconduct, criminal procedure, and economic justice.

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