By Christopher Dunn

Police officers burst into an apartment with guns drawn and without a warrant or notice. An unsuspecting homeowner instinctively pulls a gun off a bedside table and turns towards the intruders. The officers shoot the homeowner.

The U.S. Supreme Court soon will hear argument in a case that presents the question whether officers in these types of scenario have used excessive force in violation of the U.S. Constitution. The case before the court comes out of the Ninth Circuit, which has developed a "provocation doctrine" under which lower courts are to consider the sequence of events leading up to the use of force in determining whether force was excessive and which allows a finding of excessive force when police officers provoke the situation that in turn prompted them to use force. Other U.S. Courts of Appeals, including the Second Circuit, have held that the constitutional reasonableness of force must be assessed taking into account only the circumstances of the moment when the officers acted.

Given that police officers often instigate confrontations that culminate in force, including fatal shootings, the interplay between officer provocation and the constitutional protection against excessive force is an important one. And that interplay becomes all the more important in light of the ongoing national controversy over police shootings of civilians and in light of the prospect of a society where more and more people own and carry guns.

U.S. Constitution and Force
Two Supreme Court cases from the 1980s establish the basic federal constitutional standards governing police use of force. Most broadly, Graham v. O'Connor , 490 U.S. 386(1989), sets out the standards for non-lethal force by officers engaged in enforcement activity on the street. There, a police officer's observation of a man rushing into and out of a store led to serious injuries to the man before officers realized he was a diabetic suffering from an insulin reaction. When the man's case seeking damages reached the Supreme Court, the court rejected the argument that the Fourth Amendment had nothing to say about how an otherwise lawful arrest was effected and held instead that force used in "an arrest or investigatory stop of a free citizen" is subject to the prohibition against unreasonable seizures. The court then articulated the following standards:

The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight … . The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

As in other Fourth Amendment contexts, however, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

Four years before Graham 's ruling on non-lethal force, the court had addressed the more specific issue of police use of deadly physical force in Tennessee v. Garner , 471 U.S. 1 (1985). There, an officer had shot and killed an unarmed teenager fleeing from a home he had burglarized. Tennessee law and the officer's department policy authorized shooting the teen, but the Supreme Court held it violated the Fourth Amendment:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so … .

Where [however,] the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

Thus, under Graham non-lethal force may be used only if reasonable given the circumstances facing the officer at the time and as measured by an objective standard of reasonableness, with the officer's subjective assessment of those circumstances or the officer's subjective motive playing no role in the analysis. And under Garner, deadly physical force cannot be used unless the suspect poses a serious threat of serious physical harm to the officer or others, which may arise from the officer being threatened by an armed suspect or from a suspect having committed a violent crime.

Officer Provocation
It was against the backdrop of Graham and Garner that the Ninth Circuit developed its "provocation doctrine." A 2010 case succinctly summarizes the doctrine: "Where a police officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for an otherwise defensive use of deadly force." Espinosa v. City and County of San Francisco , 598 F.3d 528, 538 (9th Cir. 2010).

The Ninth Circuit provocation case now before the Supreme Court arises from a complicated set of facts. Deputies of the Los Angeles County Sheriff's Office responded to a call about a wanted parolee spotted outside of a grocery store. When they arrived, the parolee, who was deemed armed and dangerous, was not to be found. Shortly thereafter, another call came in reporting that someone matching the parolee's description was in front of a nearby residence. Again, when deputies arrived there, the parolee was nowhere in sight. Deputies then forced their way into the residence, only to discover no one was there except the homeowner. Finally, the deputies set their sights on a shack in the back yard, which they had been told was the residence of one Angel Mendez and his pregnant wife.

The deputies did not knock and announce their presence at the shack, and [Deputy] Conley "did not feel threatened." Approaching the shack from the side, Conley opened the wooden door and pulled back a blue blanket used as a curtain to insulate the shack. The deputies then saw the silhouette of an adult male holding what appeared to be a rifle pointed at them. Conley yelled "Gun!" and both deputies fired fifteen shots in total. Other nearby officers ran back toward the shots, and one officer shot and killed a dog.

The tragedy is that in fact, Mendez was holding only a BB gun that he kept by his bed to shoot rats that entered the shack; as the door was opening, he was in the process of moving the BB gun so he could sit up in bed. The district court found that the BB gun was pointed at the deputies, although the witnesses' testimony on that point was conflicting and the court recognized that Mendez may not have intended the gun to point that direction while he was getting up. Both Mendezes were injured by the shooting. Mr. Mendez required amputation of his right leg below the knee, and Ms. Mendez was shot in the back.

The Ninth Circuit's endorsement of a constitutional violation here illustrates the tension in the court's provocation doctrine: "Although the district court held that the deputies' shooting of the Mendezes was not excessive force under Graham v. O'Connor, the district court awarded damages under the provocation doctrine … . We agree." And in affirming the judgment against the officers, the Ninth Circuit separately noted that it was foreseeable that the officers would encounter an innocent homeowner with a gun in light of the Supreme Court's decision in Heller v. District of Columbia , 554 U.S. 570 (2008), expanding the Second Amendment to encompass an individual's right to possess a gun in the home.

As noted in the petition for certiorari filed by the deputies with the Supreme Court, most other circuits have resisted expanding the excessive force inquiry to encompass events leading up to the use of force. The Second Circuit case cited in the petition is illustrative.

As in Mendez , the police use of force at issue in Salem v. Proulx , 93 F.3d 86 (2d Cir. 1996), arose out of the pursuit of a wanted person, in that case a 14-year-old boy who had escaped from a juvenile detention center. An East Hartford, Connecticut police officer, who was working in plainclothes and (oddly) carrying only a personal handgun, sought to apprehend the boy. A confrontation ensued, the boy ran, and the officer ultimately caught up with him. That in turn led to a protracted struggle that several young children joined in and that ended elliptically and tragically: "During the 5 minute fight, Officer Proulx saw the barrel of his gun in Eric's hand and he instinctively grabbed the handle and pulled the trigger," killing the boy.

In pressing an excessive force claim, the boy's estate argued that the officer had created the circumstances that resulted in the shooting and therefore that the force was unreasonable in violation of the Fourth Amendment. The Second Circuit rejected this:

Plaintiff additionally contends that Officer Proulx is liable for using excessive force because he created a situation in which the use of deadly force became necessary. Plaintiff faults Proulx for various violations of police procedure, such as failing to carry a radio or call for back-up, and also for failing to disengage when the other children entered the fray. However, Officer Proulx's actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force. The reasonableness inquiry depends only upon the officer's knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.

Provocation in Supreme Court
In accepting review of the Ninth Circuit's decision in Mendez, the Supreme Court agreed to consider the question "[w]hether the Ninth Circuit's 'provocation' rule should be barred as it conflicts with Graham v. O'Connor." In addressing that question, the court has a range of options.

Importantly, the Ninth and Second Circuit cases present very different situations. The provocation doctrine as articulated by the Ninth Circuit is premised upon officers having provoked the use of force by virtue of their preceding unlawful behavior (in the case of Mendez, barging into a home without a warrant or exigent circumstances). By contrast, the provocation in the Second Circuit case involved little more than a police officer initiating a sequence of events that ended with an otherwise justified use of force. One can easily envision the court categorically ruling out excessive force claims in the latter situation.

On the other hand, the notion that the Fourth Amendment considers only the circumstances "at the moment" of the use of force, as specified by the Second Circuit in Salem, is deeply problematic. One can easily envision scenarios where police officers engage in a whole range of unlawful and provocative actions that ultimately prompt civilians to defend themselves in a way—such as pointing a gun—that leads officers to use force, including firing their weapons. The Fourth Amendment should not be blind to such provocations.

Christopher Dunn, the associate legal director of the New York Civil Liberties Union, can be reached at cdunn@nyclu.org.

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