Supreme Court Grants Review of 9th Circuit Rule That Endangers Peace Officers 
by ALADS Board of Directors
We welcome the decision of the United States Supreme Court to hear a 9th Circuit case involving two Los Angeles County Sheriff's deputies which poses important peace officer safety and civil liability issues. Using a "provocation" theory followed by no other federal courts, the 9th Circuit upheld the award of $4 million dollars to two persons wounded by deputies even though the court determined the use of force was reasonable under the Supreme Court standard in Graham v. Connor.

The United States Supreme Court ruled in Graham v. Connor that a law enforcement officer's use of force was to be measured by the reasonableness of the action at the moment the force was used. This was meant to foreclose second guessing of split-second decisions, with the crucial factor being whether the suspect posed an immediate threat to the officer or others. The 9th Circuit, however, has undermined the Graham standard by creating a " provocation rule." This rule allows a plaintiff to recover damages if he can show the officer's reasonable use of force was made necessary by the plaintiff's violent response to the officer's conduct, the officer intentionally or recklessly provoked the response, or the provocation itself was an independent constitutional violation.

In the case the Supreme Court has decided to hear, ( Los Angeles County v. Mendez) a 12-member Los Angeles County Sheriff's team was searching for a parolee-at-large who was described as "armed and dangerous." They first responded to a call that the parolee was seen entering a grocery store. He wasn't there, but an hour later he was allegedly spotted outside the house belonging to Paula Hughes. According to court records, Ms. Hughes had allowed a homeless couple, Angel Mendez and Jennifer Garcia, to live in a plywood shack behind her home. Two deputies went to the rear of the residence to clear the property and provide cover for other deputies. While searching the wooden shack, they pulled back a blanket covering the entrance and were confronted by Mr. Mendez who pointed a rifle at them (it was later found to be a BB rifle). They shot and wounded Mr. Mendez and also wounded Ms. Garcia.

The 9th Circuit found the shooting to be reasonable but held the deputies liable under the invented "provocation rule" because they did not have a search warrant and failed to " knock and announce" before attempting entry into the plywood shack. Had this rule not been applied, only nominal damages would have been awarded.

The attorneys for the County of Los Angeles and the deputies aptly summed up the dangerousness of the rule: "The Ninth Circuit's 'provocation' rule puts the lives of officers at mortal risk by imposing civil liability for a reasonable use of force. An officer who has not used excessive force but who has nevertheless otherwise violated an individual's constitutional rights must refrain from defending himself even if his life is threatened or be held financially liable in a 42 U.S.C. section 1983 action." (A 42 U.S.C. section 1983 action is a federal civil rights lawsuit alleging violations of the 4th Amendment.) The county argues that a 1989 Supreme Court ruling precludes liability for provocation when the use of force itself was reasonable.

Not only have no other federal circuit court adopted this "provocation rule", some have explicitly criticized it. These courts reject the idea that evaluation of whether an officer's use of force was reasonable should include consideration of actions prior to the use of force. Instead, they adhere strictly to the rule laid out by the United States Supreme Court in Graham limiting an excessive force case to deciding if the officer was in danger at the moment of the threat that resulted in the officer's use of force.

A decision on this case is expected by June 2017. 

The Association for Los Angeles Deputy Sheriffs (ALADS) is the collective bargaining agent representing more than 8,200 deputy sheriffs and district attorney investigators working in Los Angeles County. 

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