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Justice Alito noted that the Supreme Court’s rulings on excessive force call for looking at the totality of circumstances to determine whether, at the time the force was used, it was reasonable for the police to use it.

High Court Dumps ‘Provocation’ Theory, Narrowing Police Liability for Use of Force


The U.S. Supreme Court has unanimously rejected a “provocation” rule used by the San Francisco-based Ninth Circuit that gave victims of excessive use of police force a way to overcome officials’ claims of immunity to lawsuits.

In its May 30 decision in Los Angeles County v. Mendez, the high court voted 8-0 to overturn Ninth Circuit decisions establishing a “provocation” rule as an independent basis for suing for injuries inflicted by police actions. The opinion written by Justice Samuel Alito called it a “novel and unsupported path to liability” not grounded in the Fourth Amendment.

The case grows out of an October 2010 search by the Los Angeles County Sheriff’s Department for a parolee thought to be armed and dangerous. Having received a tip that the man they were searching for was at a particular residence, sheriff’s deputies went to the front door and questioned the homeowner, while two other officers went to search other parts of the property, focusing on a backyard that held numerous junked cars, storage sheds, and a jerry-built 7’ x 7’ wooden and plywood shack built by and lived in by a homeless couple, Angel Mendez and his fiancée.

Despite not having a warrant, and without announcing themselves or knocking, the deputies entered the shack where Mendez and his girlfriend had been napping. When he arose, Mendez was holding a BB gun, which he kept in the shack to shoot rats and other vermin. It resembled a small-caliber rifle.

Seeing the silhouette of a man holding a weapon, both deputies opened fire, injuring both residents. Mendez’s wounds necessitated the below-the-knee amputation of his right leg. The victims sued the county and three officers for excessive force, and won a $4 million jury verdict.

On appeal, California’s a three-judge panel of the Ninth Circuit upheld the verdict, citing its “provocation” doctrine, which says that even when they have not used excessive force, they can still be held liable if their conduct provoked victims to act in a way that led police to respond with force causing injury to the victims.

In his opinion, Alito noted that the Supreme Court’s rulings on excessive force call for looking at the totality of circumstances to determine whether, at the time the force was used, it was reasonable for the police to use it. In his view, California’s provocation rule unacceptably allows other police misconduct – such as the failure to obtain a search warrant – to bypass the qualified immunity police might otherwise have, and thus “manufacture an excessive force claim where one would not otherwise exist.” So, according to the Supreme Court, a separate Fourth Amendment violation cannot transform “reasonable use of force into an unreasonable seizure.”

While the provocation rule might be based on a desire to hold police responsible for the likely results of constitutional torts they commit, Alito noted, it is unnecessary to “distort the excessive force inquiry,” as the provocation rule does, since plaintiffs can generally recover, subject to qualified immunity, damages where a constitutional violation was the proximate cause of their injuries. The opinion also ruled that the Ninth Circuit erred in holding that the failure to obtain a warrant could be a proximate cause of the victims’ injuries.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com and PrisonerResource.com.

About Christopher Zoukis

Christopher Zoukis, a writer currently incarcerated at FCC Petersburg (Medium), is an impassioned and active prison education advocate, a legal commentator, and a prolific writer of books, book reviews, and prison law articles. While living in federal prison at various security levels, retaliations for his activism have earned him long stretches in solitary, or “the hole.”

While in prison, he has earned numerous academic, legal, and ministerial credentials. Christopher is very knowledgeable about prison-related legal issues, prison policy, federal regulations, and case law. He is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons (Middle Street Publishing, 2017), College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014) and thePrison Education Guide (Prison Legal News Publishing, 2016).

The Federal Prison Handbook is an IndieReader Discovery Awards winner.

A regularly featured contributing writer for The Huffington Post and Prison Legal News, the nation’s most prominent prison law publication, Christopher has enjoyed significant media exposure through appearances with the Wall Street Journal’s Market Watch, Vice.com, Salon.com, In These Times, The Jeff McArthur Show, The Simi Sara Show,TheCommentary.ca, 88.9 WERS’ award-winning “You Are Here” radio segment, and The Examiner.

Other articles and book reviews appeared in The New York Journal of Books, the Kansas City Star, The Sacramento Bee, Blog Critics, Midwest Book Review, Basil and Spice, Seattle Post-Intelligencer, SF Gate, AND Magazine, Truth-Out.org, Rain Taxi, and the Education Behind Bars Newsletter, with content syndicated by the Associated Press, Google News, and Yahoo News.

He established three websites: PrisonEducation.com, PrisonerResource.com, and ChristopherZoukis.com, and was a former editor of the Education Behind Bars Newsletter. In 2011, his fiction won two PEN American Center Prison Writing Awards for a screenplay and a short story. He taught a popular course on writing and publishing to over 100 fellow prisoners.

Today Christopher is successfully working on a Bachelor’s Degree in Interdisciplinary Studies (Business/Law) from Adams State University. Following his 2016 graduation, he plans on attending Adams State University’s MBA program. He regularly advises fellow prisoners and prison consultants about legal issues and federal regulations governing the Federal Bureau of Prisons operations. Upon release he plans to attend law school and become a federal criminal defense attorney.

Christopher will not allow incarceration to waste his years or halt the progress of his life. He began his prison terms as a confused kid who made poor decisions but is today determined to create a better life. “We can’t let the past define us,” he says. “We have to do something today to make tomorrow what we want it to be.”

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