{"id":10421,"date":"2017-02-09T13:10:06","date_gmt":"2017-02-09T18:10:06","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10421"},"modified":"2017-03-13T13:10:48","modified_gmt":"2017-03-13T17:10:48","slug":"as-a-matter-of-law-and-policy-the-ninth-circuits-provocation-rule-must-stand-2","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/as-a-matter-of-law-and-policy-the-ninth-circuits-provocation-rule-must-stand-2\/","title":{"rendered":"As a Matter of Law and Policy, the Ninth Circuit\u2019s \u201cProvocation Rule\u201d Must Stand"},"content":{"rendered":"

This term, the U.S. Supreme Court will decide whether the judicially created \u201cprovocation rule\u201d comports with the Court\u2019s precedents.[1]<\/a> The action under review, Mendez v. County of Los Angeles<\/em>, involves an incident that occurred in the desert town of Lancaster, California, where sheriff deputies unlawfully entered a homeless couple\u2019s dwelling and shot the individuals repeatedly. By invoking the provocation doctrine, the trial court held the deputies (and thus, the County) liable. As Mendez<\/em> 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 \u2013 that parties who commit unlawful conduct are liable for the resulting injuries \u2013 the Supreme Court should uphold the doctrine.<\/p>\n

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\u2019 home and entered her backyard. There they spotted a small shack occupied by Hughes\u2019 high school friend, Angel Mendez, and his pregnant girlfriend, Jennifer Garcia.[2]<\/a> Due to their homeless status, Ms. Hughes permitted the couple to erect and live in the shack.<\/p>\n

After surrounding the dwelling, the deputies swung the door open without providing a \u201cknock-and-announce\u201d as required by Wilson v. Arkansas<\/em>.[3]<\/a> 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\u2019s wounds ultimately required the amputation of his right leg.<\/p>\n

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\u2019 Fourth Amendment rights and proximately caused their injuries.[4]<\/a> In so holding, the court invoked the Ninth Circuit\u2019s \u201cprovocation doctrine,\u201d which provides that an officer may be held liable for an \u201cotherwise defensive use of deadly force\u201d where he recklessly provokes a violent encounter, if the provocation is an \u201cindependent Fourth Amendment violation.\u201d[5]<\/a><\/p>\n

After the Ninth Circuit unanimously affirmed,[6]<\/a> the Supreme Court granted certiorari this past December to determine whether this doctrine can be squared with the Court\u2019s landmark decision in Graham v. Connor<\/em>, which articulates the test for evaluating excessive force claims against law enforcement.[7]<\/a><\/p>\n

The County avers that, under Graham<\/em>, 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<\/em> by permitting courts to find liability for justifiable force.<\/p>\n

However, this argument misses the mark.<\/p>\n

The Graham<\/em> decision lends no support for the proposition that reasonable force precludes liability under any theory<\/em>; it merely provides that reasonable force precludes liability for\u00a0excessive use of force<\/em>.[8]<\/a> The County, quite plainly, reads Graham<\/em> too broadly.<\/p>\n

It cannot be understated that Graham<\/em> merely governs claims of excessive force, which \u2013 importantly \u2013 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]<\/a> Rather, the deputies were held liable for their warrantless entry, which, per the lower courts, proximately caused the plaintiffs\u2019 injuries.<\/p>\n

This theory rests on the well-established notion that constitutional torts are to be determined by basic tort principles, including proximate cause.[10]<\/a> For instance, while sitting on the Third Circuit, Justice Alito ruled that a law enforcement officer that unlawfully enters a suspect\u2019s home is liable for harm \u201cproximately\u201d caused by his tortious conduct.[11]<\/a>\u00a0Accordingly, after establishing that the deputies\u2019 entry was unconstitutional, the Mendezes\u2019 only remaining burden was to demonstrate that the entry proximately caused their injuries.<\/p>\n

The lower courts unsurprisingly had little difficulty finding that the proximate cause prong was met. The deputies\u2019 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]<\/a> Indeed, in McDonald v. United States<\/em>, Justice Jackson discussed the \u201cgrave troubles\u201d police may encounter after unlawfully entering a suspect\u2019s home, including the resident\u2019s \u201cnatural impulse\u201d to shoot.[13]<\/a><\/p>\n

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\u2019s detention is privileged,[14]<\/a> 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\u2019s 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\u2019 dwelling and thereby caused their injuries.<\/p>\n

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

The significance of Mendez<\/em>, 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<\/em> decision. After all, to no fault of their own, the Mendezes were shot repeatedly due to the deputies\u2019 flagrant civil rights violations, which saddled the couple with past and future medical bills amounting to nearly $2 million, and inflicted\u00a0upon them\u00a0severe and permanent injuries.\u00a0[16]<\/a><\/p>\n

 <\/p>\n

[1]<\/a> See<\/em> Mendez v. Cnty. of Los Angeles<\/em>, 815 F.3d 1178 (9th Cir. 2016), cert. granted in part<\/em>, (U.S. Dec. 2, 2016) (No. 16-369) (\u201cMendez II<\/em>\u201d).<\/p>\n

[2]<\/a> Because Ms. Garcia and Mr. Mendez have since married, they will be referred to collectively herein as the \u201cMendezes.\u201d<\/p>\n

[3]<\/a> Wilson v. Arkansas<\/em>, 514 U.S. 927, 931-34 (1995).<\/p>\n

[4]<\/a> Mendez v. Cnty. of Los Angeles<\/em>, No. CV 11-04771-MWF (PJWx), 2013 WL 4202240, at *24, *33 (C.D. Cal. Aug. 13, 2013), aff\u2019d in part, rev\u2019d in part<\/em>, 815 F.3d 1178 (9th Cir. 2016) (\u201cMendez I<\/em>\u201d) (\u201cEvery reasonable officer in Deputies Conley and Pederson\u2019s position would have understood that what they were doing violated . . . Mr. and Mrs. Mendez\u2019s right to be free from an unreasonable search . . . .\u201d). See also Steagald v. United States<\/em>, 451 U.S. 204, 211-12 (1981) (warrantless entry into a home is unreasonable absent exigent circumstances).<\/p>\n

[5]<\/a> Billington v. Smith<\/em>, 292 F.3d 1177, 1189 (9th Cir. 2002).<\/p>\n

[6]<\/a> See Mendez II<\/em>, 815 F.3d at 1195.<\/p>\n

[7]<\/a> Graham v. Connor<\/em>, 490 U.S. 386, 396 (1989).<\/p>\n

[8]<\/a> See id.<\/em> at 388 (\u201cThis case requires us to decide what constitutional standard governs a free citizen\u2019s claim that law enforcement officials used excessive force . . . . We hold that such claims are properly analyzed under the Fourth Amendment\u2019s \u2018objective reasonableness\u2019 standard . . . .\u201d).<\/p>\n

[9]<\/a> Mendez I<\/em>, 2013 WL 4202240, at *25.<\/p>\n

[10]<\/a> See, e.g.<\/em>, Monroe v. Pape<\/em>, 365 U.S. 167, 187 (1961) (providing that 42 U.S.C. \u00a7 1983 \u201cshould be read against the background of tort liability that makes a man responsible for the natural consequences of his actions\u201d); Malley v. Briggs<\/em>, 475 U.S. 335, 344 n.1 (1986); Brower v. Cnty. of Inyo<\/em>, 489 U.S. 593, 599 (1989).<\/p>\n

[11]<\/a> Bodine v. Warwick<\/em>, 72 F.3d 393, 400 (3d Cir. 1995).<\/p>\n

[12]<\/a> See, e.g., White v. Roper<\/em>, 901 F.2d 1501, 1506 (9th Cir. 1990) (providing that foreseeable intervening causes do not supersede the defendant\u2019s liability).<\/p>\n

[13]<\/a> McDonald v. United States<\/em>, 335 U.S. 451, 460-61 (1948) (Jackson, J., concurring).<\/p>\n

[14]<\/a> Restatement (Second) of Torts \u00a7 120A (Am. Law. Inst. 1965).<\/p>\n

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

[16]<\/a> See Mendez I<\/em>, 2013 WL 4202240, at *37.<\/p>\n","protected":false},"excerpt":{"rendered":"

This term, the U.S. Supreme Court will decide whether the judicially created \u201cprovocation rule\u201d comports with the Court\u2019s precedents.[1] The 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