The Provocation Rule

Written By: Christopher Romero |

The U.S. Supreme Court recently overturned the Ninth Circuit’s “provocation rule,” which states that police who used reasonable or defensive force may be liable if the force used was the direct result of the officer’s own unlawful or provocative police action, therefore allowing the plaintiff(s) to recover damages.

Behind the Provocation Rule

In the case County of Los Angeles v. Mendez, two Los Angeles County deputies, while looking for a wanted parolee, entered a shack without a warrant and without knocking or announcing their presence. The deputies encountered two occupants – Angel Mendez and his pregnant fiancée – neither of whom was the person they were looking for. Both were asleep, and upon seeing what the deputies thought was a rifle in Mendez’s hands (a BB gun), the deputies opened fire, seriously wounding both. Through application of the provocation rule, a Los Angeles jury awarded Mendez and his now wife, Jennifer Mendez, $4 million in damages after finding the officers used excessive force in violation of the Fourth Amendment.

The Argument

In the appeal, Los Angeles County sought to repeal the provocation rule, and asked the Supreme Court to establish a new rule to prohibit courts from considering any unlawful actions of the police prior to their decision to use force. Rather than fully adopting Los Angeles County’s position, the Court opted to strike a middle ground. The U.S. Supreme Court overturned the provocation rule, reasoning it is improper that under the rule a court could still find liability for excessive force, even after determining an officer’s use of force was reasonable under the entirety of the circumstances. The Supreme Court further reasoned that Angel and Jennifer Mendez, and any similarly situated plaintiff, might still be able to recover damages for their injuries based on the warrantless entry alone, even though the deputies’ use of force was deemed reasonable.

The Provocation Rule – Looking Forward

The Court was correct to rule as it did because someone in the plaintiff’s situation will already have a remedy for damages through a claim for a warrantless search. Therefore, there is no need to bring forward a separate claim for excessive force justified by the provocation rule. The provocation rule is unnecessary to remedy a plaintiff in the same situation as the Mendezes, and only creates incompatible rulings where force is deemed to be reasonable under the circumstances, but also excessive at the same time.