In 2002 the U.S. Court of Appeals for the 9th Circuit said that the lawful use of deadly force by the police may be ruled unlawful if the police themselves “created the need to use force” by acting in an illegal manner. “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation,” the 9th Circuit held in Billington v. Smith, the officer “may be held liable for his otherwise defensive use of deadly force.” Otherwise known as the “provocation doctrine,” this legal standard has served as an important check on overreaching law enforcement tactics. Today, by a vote of 8-0, the U.S. Supreme Court rejected the 9th Circuit’s reasoning and wiped the provocation doctrine off the books.
At issue today in County of Los Angeles v. Mendez was a 2010 incident in which two deputies from the L.A. County Sheriff’s Department entered the residence of Angel Mendez and Jennifer Garcia without a search warrant, spotted Mendez holding a BB gun (which he kept on hand to fend off rats), and shot both Mendez and Garcia multiple times in ostensible self-defense. Mendez’s right leg was later amputated below the knee as a result of his injuries. Garcia was shot in the back.
Mendez and Garcia sued, charging the police with illegal search, illegal seizure, and illegal use of force under the Fourth Amendment. In March 2016, Mendez and Garcia prevailed at the 9th Circuit, which rejected the officers’ pleas for qualified immunity and instead held that the two detectives were “liable for the shooting as a foreseeable consequence of their unconstitutional entry even though the shooting itself was not unconstitutionally excessive force under the Fourth Amendment.” In other words, Mendez and Garcia prevailed under the provocation doctrine.
Writing today for a unanimous Supreme Court, Justice Samuel Alito overturned that 9th Circuit decision, dismantled the provocation doctrine, and ruled in favor of the officers. The provocation doctrine “is incompatible with our excessive force jurisprudence,” Justice Alito declared. “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” According to Alito, “there is no need to dress up every Fourth Amendment claim as an excessive force claim.”
Of course, if the police had not violated the Constitution to begin with in this case, the police would not have had the opportunity to use any sort of force at all. The indisputable fact is that Angel Mendez would still have the use of his right leg if the detectives had not disobeyed the Fourth Amendment, illegally entered his home, and shot him.
The Supreme Court’s opinion in County of Los Angeles v. Mendez is available here.