United States Supreme Court Shuts Down Ninth Circuit’s "Provocation Rule"

by Haight Brown & Bonesteel LLP

In an October 2010 use of force case arising out of an incident in Los Angeles County, the Ninth Circuit attempt to expand officer liability with the “Provocation Rule” was struck down by the United States Supreme Court. However, the Supreme Court’s ruling tossed the ball back to the Ninth Circuit for its assessment of “proximate cause” and “ foreseeability” with regard to the damages allegedly suffered by a plaintiff.

This new Fourth Amendment violation would have rendered an otherwise reasonable use of force or seizure unreasonable if (1) the officer “‘intentionally or recklessly provokes a violent confrontation’ and (2) ‘the provocation is an independent Fourth Amendment violation.’” Fortunately, the United States Supreme Court eviscerated that fictitious extension of Graham in its opinion in County of Los Angeles v. Mendez, 581 U.S. ___ (May 30, 2017).

In Mendez, Los Angeles County Sheriff Deputies were searching for a wanted parolee that a confidential informant had told them was seen riding his bike in front of a local residence. The deputies responded to that residence and asked the owner for permission to search the residence. They did not have a warrant to search the home. While deputies were speaking with the homeowner, they learned about a “shack” at the back of the home. As the deputies at the front door were gathering more information about the “shack” and its occupants, two other deputies entered the curtilage (area where one would have a reasonable expectation of privacy) of the property and began walking towards the “shack” looking for the parolee. The homeowner did not give permission for the residence to be searched.

The two deputies in the back proceeded to enter the door of the shack. Mr. Mendez and his pregnant girlfriend were napping on a futon at the time of the entry. Mr. Mendez proceeded to sit up with what appeared to be a rifle in his hand and pointed it at the deputies. One deputy quickly shouted “Gun!” wherein he and a second deputy shot at the Mendezes causing multiple injuries. Mr. Mendez and his girlfriend were awarded nearly $4 million dollars by the trial court based on the “provocation rule” even though the deputies’ use of force was found to be reasonable.

From an agency and officer’s perspective, this rule would create the dichotomy of a “seizure” or “search” being found reasonable under Graham, but there still being a finding of responsibility for damages. And, the evaluation would not end there. The pre-seizure, subjective, conduct for the incident may then also give rise to an independent Fourth Amendment violation.

The Ninth Circuit’s attempted expansion of Graham would require a court to first determine if a search or seizure was reasonable and then look to see if there was a separate constitutional violation. This could potentially set a precedent for witch-hunts in all use of force cases with unimaginable damages verdicts, wherein, the underlying “search” or “seizure” was found to be reasonable under the Fourth Amendment.

The Supreme Court’s ruling allows agencies and officers a chance to breathe and realize the Ninth Circuit’s “Provocation Rule” has been shot down, for now. As Justice Samuel Alito cautioned, the “rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” However, all is not yet cured as the Supreme Court left untouched the issue of “proximate cause” and unreasonable police conduct prior to the use of force that foreseeably created a need to use it. This issue was remanded to be addressed by the Ninth Circuit and we now must await the Ninth Circuit’s finding.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Haight Brown & Bonesteel LLP | Attorney Advertising

Written by:

Haight Brown & Bonesteel LLP

Haight Brown & Bonesteel LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.