U.S. Supreme Court Alters Ninth Circuit Case Law on Excessive Force Claims

Emergent LLP’s attorneys are skilled in civil rights litigation and committed to protecting victims of police violence and misconduct.  Emergent’s active pro bono practice supports the National Police Accountability Project of the National Lawyers Guild (“NPAP”), and participated in this litigation before the Supreme Court as amicus curiae for the respondents.  The NPAP brief is available here.

In a carefully drafted 8-0 opinion, the Supreme Court this week struck down the Ninth Circuit’s “provocation rule” previously relied on by some victims of police abuse in California.  The rule had allowed plaintiffs to recover damages for the use of excessive force by police in circumstances in which an officer used otherwise “reasonable” or defensive force that was nevertheless the result of circumstances created by unlawful and provocative police action.

Tragic Facts, Difficult Law

The case, County of Los Angeles v. Mendez, presented exceedingly sympathetic facts juxtaposed with a much more complex legal question.  In 2010, Los Angeles County Deputies searching for a parole violator entered a dilapidated shack in which Angel and Jennifer Mendez were residing.  They did so without a warrant and without announcing their presence, in violation of the Fourth Amendment.  Upon entering, they encountered Mr. Mendez—not the person they were looking for—sitting up in bed, holding a BB gun and completely oblivious to the police presence.  Upon seeing what looked like a rifle, the officers fired fifteen shots at Mr. Mendez and his pregnant fiancée, hitting Angel Mendez multiple times and shooting Jennifer Mendez in the back.

Both miraculously survived the shooting, as did the baby, but Mr. Mendez’s leg was amputated.  The indigent couple soon faced over a million dollars in medical expenses.  They sued the police in a § 1983 action, seeking damages and compensation for their injuries.  No one disputed they were innocent victims of a police shooting; but the police claimed that at the moment they opened fire, they reasonably believed their lives to be in danger—notwithstanding their illegal entry.

The Trial Verdict and the Provocation Rule

At trial, the district court accepted the crux of the deputies’ argument, and found that the Mendezes could only recover nominal damages for the Fourth Amendment violations of warrantless entry and failure to knock-and-announce.  However, citing the provocation rule, the court awarded approximately $4 million in damages on the couple’s excessive force claim, since the deputies’ use of “otherwise reasonable” force was also the result of the police’s unlawful conduct in the first instance.

Although this was a rather novel application of the provocation rule, since there was no real “provocation” in the case—Mr. Mendez was not actually provoked to violence in response to police conduct—the district court’s ruling was nevertheless affirmed by the Ninth Circuit, perhaps to ensure that the innocent victims of police violence would be afforded some form of relief.  The provocation rule was always on shaky legal ground, however.  The Ninth Circuit had never clearly established the practical parameters for its application, nor explained how it squared with existing Supreme Court precedent in excessive force cases.  

The Supreme Court Opinion and Emergent's Amicus Brief

On petition to the Supreme Court, Los Angeles County not only sought to abrogate the provocation rule, but also asked the Court to establish a new bright-line rule to prohibit courts from considering any unlawful acts of the police prior to their decision to use force.  Such a rule would have been a terrible outcome for the thousands of innocent families affected by police violence every year, as it would effectively preclude recovery whenever police claim “reasonable fear” as justification for firing their weapons or other acts of force, even when the officers’ own unconstitutional actions—such as warrantless entry, unconstitutional stop-and-frisk, illegal traffic stop, etc.—are the proximate cause of the harms suffered.

Emergent counsel Joshua Paulson and founding partner Christopher Wimmer participated in the litigation before the Supreme Court as lead pro bono counsel for the National Police Accountability Project (NPAP), an amicus curiae in support of the Mendez couple.  NPAP’s Supreme Court brief described the flexible, context-sensitive ways in which different circuits throughout the country have analyzed excessive force claims, and warned of the terrible precedent that would be set if these claims were analyzed only as of the moment the police applied force, ignoring whether the police had acted unconstitutionally in the moments leading up to the use of force.  The brief also provided real-world examples, drawn from NPAP members’ practices, of innocent citizens killed by police misconduct who would be denied justice under the rule proposed by Los Angeles County.

In the end, the Supreme Court’s unanimous opinion was carefully tailored to strike a middle ground:  While it dispensed with the provocation rule per se, it declined to adopt the narrow rule requested by Los Angeles.  The problem with the provocation rule, said the Court, was that it allowed for judges to award liability even after making a specific finding that the use of force was reasonable under the totality of the circumstances.  Instead, the Court suggested that on remand the Mendez couple should perhaps ask whether the district court erred in its initial determination that the use of force was reasonable in the first place—and whether the totality of the circumstances relevant to the shooting should include the “unreasonable police conduct prior to the use of force that foreseeably granted the need to use it.”  The Court declined to answer this question, but explicitly suggested that it be taken up by the Ninth Circuit.

In addition, and perhaps most importantly, the Court highlighted a second roadmap to relief for plaintiffs such as Angel and Jennifer Mendez, finding that they may still be able to recover damages for their injuries based on the warrantless entry alone—even if the officers’ use of force is deemed reasonable, and the excessive force claim is foreclosed.  “[T]here is no need to dress up every Fourth Amendment claim as an excessive force claim,” wrote the Justices.  “On remand the court should revisit the question whether proximate cause permits respondents to recover damages for their shooting injuries based on the deputies’ failure to secure a warrant at the outset.”  In many ways, this is a simpler and more practical embodiment of the principles underlying the provocation rule itself—a recognition that, as the Court acknowledged, “it is important to hold law enforcement officers liable for the foreseeable consequences of all of their constitutional torts.”  

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