Review of: County Of Los Angeles v. Mendez 137 S. Ct. 1539 (2017)


Whether the Fourth Amendment provides a basis for the Ninth Circuit Court of Appeals’ “provocation rule.” The ‘provocation rule’ permits an excessive force claim, which otherwise would be barred because a law enforcement officer was found to have acted reasonably under the ‘circumstances,’ where the officer “intentionally or recklessly provoke[d] a violent confrontation, [and] the provocation [was] an independent Fourth Amendment violation.”[1]


Los Angeles County Sheriff’s deputies were searching for a parolee at large for whom an arrest warrant had been issued.  The parolee was believed to be armed and dangerous and previously evaded capture.[2]  Deputies Conley and Pederson had been assigned to a special task force to search for the parolee.  The task force received information that the parolee had been seen at the home of Paula Hughes.[3] During a task force briefing prior to searching the property of Paula Hughes, it was disclosed that a man named Angel Mendez lived in the backyard of the property with his pregnant girlfriend; Deputy Pederson heard this announcement, but Deputy Conley testified he did not remember hearing that.[4]

As officers approached the front door of Paula Hughes’ residence, deputies Conley and Pederson covered the back door with guns drawn and searched the rear of the property.[5]  The backyard was cluttered with debris, abandoned automobiles, three metal storage sheds, and a shack made of plywood where Mendez and his pregnant girlfriend lived.[6]

Deputies Conley and Pederson entered the shack where, unbeknownst to them, Mendez and his girlfriend were sleeping.[7]  Mendez rose from the bed thinking it was Paula Hughes entering his shack, and as he rose he used a BB gun to help himself stand which he had next to his bed.[8]  Mendez used the BB gun shoot rats and other pests that came into the shack.[9] When Mendez rose holding the BB gun, Deputies Conley and Pederson opened fire – striking Mendez and his girlfriend several times – and causing severe injuries, resulting in the amputation of one of Mendez’s legs.[10]  The deputies did not have a search warrant nor did they knock and announce their presence.[11]  The parolee at large was not found in the shack or anywhere on the property of Paula Hughes.[12]

Mendez and his wife (they were married sometime after being shot by the deputies)[13] then filed suit under 42 U.S.C. §1983 (1996) claiming, among other things, that the deputies effected an unreasonable seizure by deploying excessive force in opening fire after entering the shack.[14]  The District Court held that under Graham v Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) the deputies acted reasonably and did not use excessive force because Mendez was holding a gun (BB gun).[15] The District Court went on to apply the Ninth Circuit’s provocation rule and held the deputies liable for excessive force under that provision awarding Mendez and his wife $4 million in damages.[16] The Ninth Circuit Court of Appeals agreed and affirmed the District Courts judgment and application of the provocation rule.[17] The Supreme Court granted review.


Under 42 U.S.C. §1983 (1996), any person who is deprived of any constitutional right can hold the person liable. A plaintiff wanting to recover under this statute must first show they were deprived of a constitutional right.  In the case at hand, Mr. Mendez and his wife claimed, among other things, that the deputies effected an unreasonable seizure under the Fourth Amendment by using excessive force when shooting them.

In Graham v. Connor, the Supreme Court provided the exclusive rule for determining whether excessive force has been used in making a seizure of a person under the Fourth Amendment. This test requires the balancing of the individuals Fourth Amendment interest against the relevant government interests.[18] The operative question is “whether the totality of the circumstances justifie[s] a particular sort of search or seizure” evaluated under an objective standard of a police officer at the scene.[19]  If an officer acts reasonably under this rule, then there is no valid excessive force claim.[20]

The Ninth Circuit’s “provocation rule” on the other hand, holds that an officer’s use of force which is found reasonable under the rule laid out in Graham, “is unreasonable as a matter of law, if (1) the officer intentionally or recklessly provoked a violent response, and (2) that provocation is an independent constitutional violation.”[21]  This rule was first laid out by the Ninth Circuit in Billington v. Smith, 292 F.3d 1177 (9th Cir. 2002).  Essentially the provocation rule holds officers liable when they acted reasonably in the moment, but had committed a separate Fourth Amendment violation prior to when they were actually effectuating the seizure.

In reviewing The Mendez case, The Supreme Court held that the provocation rule is incompatible with excessive force precedent and therefore vacated the judgment of the Court of Appeals.[22]  The Court reasoned that the provocation rule is a “novel and unsupported path to liability in cases in which the use of force was reasonable.”[23]  The Court further stated that an excessive force claim is one where the officers’ use of force is not justified under the relevant circumstances,[24] but courts should not look to what the officers did prior to the circumstances surrounding the use of force.[25]  An excessive force claim is separate from any other Fourth Amendment claim, including that of unreasonable search. Although a harm can be proximately caused by another Fourth Amendment claim, no other Fourth Amendment claim can lead to an excessive force claim, they are separate claims and must be adjudged accordingly.[26]

The Supreme Court further held that the provocation rule is not only an unwarranted and illogical expansion of the excessive force rule laid out in Graham, but it is also vague and requires analysis of subjective intent of the officers involved.[27]  The provocation rule is unclear in the sense that it requires a separate constitutional violation to have “led to” the use of force.[28] It does not use a proximate cause standard, but rather a casual and vague standard to connect the constitutional violation to the use of force.[29] Also, the rule requires analysis of the subjective intent of the officers, asking whether they acted intentionally or recklessly.[30] Under the Fourth Amendment a search or seizure is almost always analyzed by an objective standard.[31]

In short, the Supreme Court dispensed of the Ninth Circuit’s provocation rule, and reversed as to the money award on such legal grounds, but remanded on another question.[32] Mr. Mendez and his wife may be able to claim damages under the unreasonable search claim if they can show that the violation was a proximate cause of the shooting.  However, they cannot use the unreasonable search to justify excessive force was used by the officers to effectuate their seizure.

The Court determined that the officers did violate Mr. Mendez and his wife’s Fourth Amendment rights against unreasonable search because the officers entered without a warrant and had no probable cause to enter.[33]  However, that constitutional violation occurred prior to the officers alleged excessive use of force when they shot Mr. Mendez and his wife.  When the officers shot the two, they were effectuating a seizure, so it must be judged by whether that seizure was reasonable under the rule laid out in Graham.  The provocation rule, which adds a two-prong test after determining the officers acted reasonably under the circumstances, conflates excessive force claims with other Fourth Amendment claims.[34]

The Ninth Circuit Court of Appeals not only found the officers used excessive force under the provocation rule, but further found that the deputies were liable on the basic notions of proximate cause because they barged into the shack unannounced which led to the shooting.[35]  During oral arguments, the Supreme Court spent a great deal of time asking the attorneys about and discussing whether police officers can be held liable for an unwarranted search which results in death or injury proximately caused by the unwarranted search.[36]  The Supreme Court ultimately found that the police could be held liable for damages proximately caused by any Fourth Amendment violation.[37]

The Ninth Circuit, however, was basing its proximate cause analysis on the failure to knock and announce, for which the police officers had qualified immunity.[38] If the plaintiffs are to recover any damages, it must stem from the violation of an unreasonable search.[39] The Supreme Court found that the Ninth Circuit’s finding on this issue was tainted by the provocation rule and lacked identification of the foreseeable risks associated with the unreasonable search violation.[40] The Supreme Court remanded to the Court of Appeals to revisit the question of whether the unreasonable search was a proximate cause of the shooting of Mr. Mendez and his wife.[41]


The Supreme Court’s ruling unanimously overruled the Ninth Circuit’s provocation rule, which The Court felt conflated excessive force claims with other Fourth Amendment claims. The Supreme Court reasoned that the provocation rule, by adjudging a police officer’s use of force for reasonableness cannot be judged based on whether the police had committed a separate and distinct Fourth Amendment violation, but simply on whether the police officer acted with excessive force in terms of effectuating a seizure. Furthermore, the Court cemented what they believed to have already been established law, that a plaintiff may recover damages that were proximately caused by an unreasonable or unwarranted search.


-Written by Michael Royer


[1] County Of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546 (2017).

[2] Id. at 1544.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Mendez, 137 S. Ct. at 1544.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at 1545.

[12] Id.

[13] Mendez, 137 S. Ct. at 1545.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 1872 (1989).

[19] Id.

[20] Id.

[21] Mendez v. County of L.A. (C.D. Cal. Aug. 13, 2013, No. CV 11-04771-MWF (PJWx)) 2013 U.S. Dist. LEXIS 115099, at *67.

[22] Mendez, 137 S. Ct. at 1546.

[23] Id. at 1547.

[24] Id.

[25] Id.

[26] Id. at 1548.

[27] Id.

[28] Mendez, 137 S. Ct. at 1548.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at 1545.

[34] Mendez, 137 S. Ct. at 1548.

[35] Id. at 1546.

[36] County of Los Angeles v. Mendez, Oyez, (last visited Jan 15, 2018).

[37] Mendez, 137 S. Ct. at 1548.

[38] Id. at 1546.

[39] Id. at 1549.

[40] Id.

[41] Id.

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