This post was authored by Paul Knothe and Kaylee Feick
On May 30, 2017, the United States Supreme Court issued a decision in County of Los Angeles v. Mendez. LCW attorneys, J. Scott Tiedemann and Leighton Henderson, submitted an amicus curiae brief to the United States Supreme Court in the case on behalf of the Los Angeles County Police Chiefs Association. (What are Amicus Curiae Briefs?)
The decision rejected the “provocation doctrine” adopted by the U.S. Court of Appeals for the Ninth Circuit (the federal appellate court covering California and other western states). Other federal Circuit courts had sharply questioned the “provocation doctrine,” and no other federal Circuits adopted it. Under the doctrine, an officer’s otherwise reasonable use of force could nonetheless be a basis for civil liability if the officer earlier committed an intentional or reckless Fourth Amendment violation that provoked a violent confrontation. The Mendez decision not only has ramifications for civil lawsuits arising out of the use of force but also has potentially significant implications for administrative discipline of peace officers for officer-provoked incidents involving the use of force.
In Mendez, a confidential informant alerted the Los Angeles County Sheriff’s Department that a potentially armed and dangerous parolee-at-large had been seen at a residence in Lancaster. While three officers searched the interior of the residence, two officers searched the back of the property, which housed a one-room shack and multiple metal storage sheds. Without a search warrant and without announcing their presence, the officers opened the door of the shack, conduct which the Ninth Circuit held violated the Fourth Amendment. (The Supreme Court did not review the Ninth Circuit’s holding as to the warrantless entry.) When the officers entered the shack, they found Angel Mendez holding a BB gun. The officers immediately opened fire, severely injuring Mendez and his girlfriend. After a bench trial, the District Court found that the officers’ use of force was unreasonable under the provocation doctrine because the officers provoked the violent confrontation by entering the shack in violation of the Fourth Amendment. The Court of Appeals affirmed the application of the doctrine.
The basic operation of the doctrine was as follows: when confronted with the BB gun, the officers’ response was objectively reasonable under the circumstances. Nevertheless, because the officers had themselves created the confrontation through their own Fourth Amendment violation in their warrantless entry into the shack, prompting Mendez to pick up the BB gun, the “provocation doctrine” meant that shooting Mendez was also a Fourth Amendment violation.
In its Mendez decision, the Supreme Court vacated the judgment of the Court of Appeals and rejected the provocation doctrine. The Court noted the provocation doctrine instructed courts to look not just at the use of force itself, but to look back in time to determine if there was any separate Fourth Amendment violation that related to the eventual use of force. The Court reasoned this type of inquiry was incompatible with Fourth Amendment jurisprudence because it mistakenly conflated distinct claims and allowed a separate Fourth Amendment violation (in this case the warrantless entry), rather than the force itself, to serve as the basis for an excessive force claim. In rejecting the provocation doctrine, the Court reaffirmed that the exclusive test for determining if an officer’s use of force complies with the Fourth Amendment is whether the force is objectively reasonable under the totality of the circumstances.
Considerations for Peace Officer Discipline
A department should always carefully review its disciplinary policy before implementing discipline for an officer-provoked force incident. In many, if not most, department policies, the standard for the use of force is the Constitutional standard of reasonableness. Departments using the Constitutional standard cannot rely on the provocation doctrine to discipline a peace officer whose use of force was otherwise reasonable under the totality of the circumstances. However, some departments may have language in their policies to support discipline for uses of force that are not constitutionally unreasonable, such as where a department’s policy contains language requiring officers to use “no more force than necessary.”
Further, an officer’s provoking pre-force conduct may still be part of the totality of the circumstances analysis for objective reasonableness. In a footnote in the Mendez decision, the Court specifically stated that it was not deciding the question of whether the officers’ provoking conduct could be part of the totality of the circumstances analysis for objective reasonableness. Instead, the Court noted the question should be addressed to the Ninth Circuit on remand. At least for the time being, the law does not appear to prohibit considering the officer’s pre-force provoking conduct to be a circumstance that could make a use of force unreasonable.
In many cases, an officer’s provoking conduct may be grounds for discipline under a department’s policy, even if the force the officer subsequently used is not. For example, in many police department policies, an officer’s discourteous, disrespectful, or discriminatory treatment of any member of the public is a basis for discipline. Additionally, many police department policies have language prohibiting officers from threatening to inflict bodily injury on another person.
In such cases, when disciplining an officer for the provoking conduct, the consequences of the use of force that follows can still be relevant to the level of discipline under Skelly v. State Personnel Board, even if the force was not constitutionally unreasonable. In Skelly, the Supreme Court of California held that the extent to which an employee’s conduct resulted in harm to the public service is the critical factor for determining the appropriate level of discipline. Therefore, if an officer’s misconduct provokes a suspect to violently confront the officer, and the officer uses deadly force on that suspect, the department could, when disciplining the officer for the provoking conduct, take into account the fact that the officer’s misconduct resulted in the death of the suspect and therefore harm to the public service.