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JUNE 2017

Nonconforming Ninth Circuit Rule on Excessive Force Overturned by SCOTUS


In County of Los Angeles v. Mendez, the United States Supreme Court overturned a Ninth Circuit doctrine called the “provocation rule” applied in police excessive force cases. This rule, favoring plaintiffs, held that a police officer’s otherwise reasonable force was unreasonable under the Fourth Amendment “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation.”


In Mendez, police sought an armed and dangerous parolee whom they believed was hiding in or around a residence. The police found a shack in the rear of the target residence and entered the shack without a warrant, did not knock and announce their presence, and confronted plaintiffs who were napping. Mendez rose from his bed holding a B.B. gun he used to kill vermin. Alarmed by the sight of a gun, the officers opened fire, hitting plaintiffs with multiple shots.


The trial court awarded nominal damages on the claims of warrantless search and the no-knock entry but held the officers’ use of force was objectively reasonable under Graham v. Connor, 490 U. S. 386 (1989). Nonetheless the trial court applied the provocation rule, finding the officers liable for use of excessive force. On appeal, the Ninth Circuit afforded the officers qualified immunity on the no-knock entry claim, held the warrantless search violated clearly established law, and upheld application of the provocation rule.


The Supreme Court reversed application of the provocation rule, holding the Fourth Amendment provides no basis for the rule because it is inconsistent with the settled and exclusive analysis used to determine whether force complies with the Fourth Amendment. Under Graham, the court must examine “whether the totality of the circumstances justifie[s] a particular sort of seizure” from the perspective of a reasonable officer in possession of those facts at the time. The provocation rule essentially established an alternate Fourth Amendment analysis, first to determine if a separate constitutional violation created a situation that led to the use of force and, second, to determine whether the separate violation was committed by the officers intentionally or recklessly. The Court reasoned that every potential violation should be analyzed separately. Under the provocation rule, however, the courts would have to apply vague standards of causation and gauge the subjective intent of the officers by conflating all alleged Fourth Amendment violations into one transaction.


The hallmark of Fourth Amendment jurisprudence is objective reasonableness. An officer should not be held liable if his actions are objectively reasonable in light of the facts and circumstances of which he was aware at the time he acted. The provocation rule, according to the Supreme Court, was an unwarranted and illogical extension of Graham. With its reliance on causative relationships of distinct acts, the rule converts Fourth Amendment jurisprudence into proximate cause tort law. The Supreme Court, in its unanimous decision, righted the Fourth Amendment ship in the Ninth Circuit.



APRIL 2017

Qualified Immunity Continues to Receive Favorable Review by SCOTUS Content


In White v. Pauly, United States Supreme Court, No. 16–67, decided January 9, 2017, the Court granted qualified immunity to a police officer who arrived late at an ongoing police action, witnessed shots being fired by an occupant of a house surrounded by other officers, and then shot and killed an armed occupant of the house without first giving a warning. Leading up to the shooting, three police officers went to a secluded house where they believed a suspect would be found. Their purpose was to investigate an allegation of drunk driving and road rage. The officers surrounded the house and shouted to the occupants to come out or they were coming in. One officer gave one warning they were police. The scene was confused, but one occupant of the house shouted back at the officers they had guns, then one occupant fired two shots from the back door. A few seconds after the shots, another man, Samuel Pauly, pointed a gun out of a window toward Officer White who eventually shot Pauly. The evidence was undisputed Officer White arrived after the first three officers and did not witness everything that occurred before Pauly pointed his gun out of the window.

In the lawsuit that followed, the district court denied qualified immunity to the officers, including Officer White, and the circuit court of appeals affirmed because, in its view, a reasonable officer in White’s position would believe that the law clearly established that a warning was required before using deadly force, despite the threat of serious harm to a law enforcement officer. The counter-argument was expressed by a dissenting circuit judge, noting he was “unaware of any clearly established law that suggests . . . that an officer . . . who faces an occupant pointing a firearm in his direction must refrain from firing his weapon but, rather, must identify himself and shout a warning while pinned down, kneeling behind a rock wall.” 817 F. 3d 715, 718 (CA10 2016).

The Supreme Court said in its per curiam opinion: “Today, it is again necessary to reiterate the longstanding principle that ‘clearly established law’ should not be defined ‘at a high level of generality.’ Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011). As this Court explained decades ago, the clearly established law must be ‘particularized’ to the facts of the case. Anderson v. Creighton, 483 U. S. 635, 640 (1987). Otherwise, ‘[p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.’ Id., at 639.” On the facts of Officer White’s claim for qualified immunity, the Court adopted the circuit’s view that the facts he presented to support his qualified immunity were “unique” but went further to opine the circuit court, if it were to deny qualified immunity, should have identified a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment, rather than rely on a generalized formula to analyze use of force.


This case illustrates an important point for defense lawyers – a unique set of circumstances will not fit into a pattern use-of-force formula, greatly increasing the opportunity to obtain qualified immunity for the officer. In other words, the more unusual the facts, the more likely the officer should be given the benefit of the doubt and qualified immunity if his actions are otherwise reasonable.

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