Supreme Court Says Cops Justified Even When Provoking A Shooting
In a unanimous decision, the Court of Appeals for the Ninth Circuit was reversed…again. This time the reversal came as a result of the Ninth Circuit’s “provocation rule” in police use-of-force cases. See Billington v. Smith, 292 F.3d 1177 (CA9 2002) (provocation rule created).
The appeals court had created a new form of liability against police officers with the provocation rule. The rule is this: if a cop violates a suspect’s constitutional rights, the cop cannot justifiably use force because of his own wrongful acts.
In County of Los Angeles v. Mendez (Case №16–369, decided May 30, 2017), the U.S. Supreme Court (“SCOTUS”) was asked to decide, among other things, whether a police officer could be held liable for an otherwise justifiable use of force on the basis that he committed a separate Fourth Amendment violation that gave rise to the use of force.
In Mendez, deputies of the Los Angeles County Sheriff’s Department received a tip from an informant that a fugitive parolee, Ronnie O’Dell, had been spotted riding a bicycle near the home of Paula Hughes in Lancaster, California. Deputies proceeded to the location and formulated a plan for apprehending O’Dell. When deputies arrived, Ms. Hughes advised them that O’Dell was not in the house. She further asked if deputies had a search warrant. A deputy admitted they had no search warrant, but had an arrest warrant for O’Dell. Ms. Hughes, for reasons unknown, was removed and arrested while deputies entered the premises to conduct a search.
Meanwhile, two deputies were on the exterior of the house and began searching three out-buildings on the property. The first was empty, but a second had an electrical line running to it, with an air conditioner mounted on the side. Two deputies, with guns drawn, began to enter the second building. Unknown to the deputies, two men were sleeping in the building, and one of the men slept with a BB gun to shoot pests. The man heard noise outside and, thinking it was the owner, stood up with the BB gun in hand, about to place it on the ground, when the deputies came in. One deputy yelled, “gun,” and both deputies fired their weapons a total of 15 times, striking both men several times. Both men survived and brought a suit alleging unlawful search, failure to knock and announce, and excessive force. O’Dell was not on the property.
The District Court found one deputy liable on the unlawful search and both liable on the knock and announce claim. On the excessive force claim, the District Court initially said that the deputies acted reasonably in the face of, what they perceived to be, an armed individual in light of Graham v. Connor, 490 U.S. 386 (1989)(setting forth the reasonable officer standard). However, the Court, despite saying the officers acted reasonably, went on to hold that the deputies provoked the occasion to use force by unlawfully entering the building, and therefore, found the deputies liable pursuant to the Ninth Circuit’s “provocation rule.” The Ninth Circuit affirmed in part and reversed in part. Most importantly, the Court affirmed application of the provocation rule.
SCOTUS reversed, holding that the “Fourth Amendment provides no basis for such a rule” (Slip at syllabus) and that the rule “is incompatible with [the Court’s] excessive force jurisprudence.” (Slip at 6). The high court has issued a number of opinions over the last 30 years that have set out, with relative clarity, the standards for judging the reasonableness of a police officer’s use of force. Generally speaking, the officer must act in an objectively reasonable manner given the totality of the circumstances. This standard, with Graham and it’s progeny in mind, is the “settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment.” (Id.) In other words, the Ninth Circuit overstepped its authority.
The Mendez case is an important one, as it further solidifies what is a remarkably clear set of cases on the use of force. An officer may use whatever force is objectively reasonable, given the totality of the circumstances and the information known to him at the time of the use of force. District and Circuit Courts are now reminded of the fundamental framework set in place by cases like Graham v. Connor (reasonable officer standard), Tennessee v. Garner (weighing government’s interests against nature of intrusion into individual rights), Saucier v. Katz (information known to officer at time of use of force), Powpow v. Margate (shooting of innocent person), Plakas v. Drinski (lesser force not required when lethal force justified), and many others. The Ninth Circuit is now brought back in line with the Supreme Court and every other Circuit.
