Nahmod Law

County of Los Angeles v. Mendez: Supreme Court Rejects “Provocation Rule,” Remands On Proximate Cause

On May 30, 2017, the Supreme Court handed down a unanimous decision in County of Los Angeles v. Mendez (No. 16-369), vacating and remanding, 815 F.3d 1178 (9th Cir. 2016).

(I blogged about the issues raised by Mendez on May 10, 2017).

As I expected, the Court, in an opinion by Justice Alito (Justice Gorsuch did not participate), rejected the Ninth Circuit’s provocation rule. However, the Court did not decide the alternative proximate cause issue, but instead remanded.


In Mendez, police officers, looking for a felony parolee-at-large with an outstanding arrest warrant, engaged in a warrantless entry into plaintiff’s residence (a shack) without exigent circumstances (they should have secured a search warrant), and without knocking and announcing, both actions in violation of the Fourth Amendment. They thereby allegedly provoked the plaintiff resident’s grabbing a gun (it turned out to be a BB gun that resembled a small caliber rifle), which in turn led to their shooting and seriously injuring the plaintiff.

The question was whether the plaintiff had a section 1983 Fourth Amendment claim against the officers for damages resulting from the use of deadly force.  The two theories underlying such liability were that the warrantless entry into the shack either (1) provoked the subsequent events within the meaning of the Ninth Circuit’s provocation rule, or (2) proximately caused the use of the deadly force which–even if reasonable when viewed in isolation–was the reasonably foreseeable result of the warrantless entry that violated the Fourth Amendment. Or was the reasonable use of deadly force an event that broke the chain of causation under the second theory?

In the posture of case when it arrived at the Supreme Court, the Ninth Circuit had determined that even though the officers violated the Fourth Amendment by not knocking and announcing, they were protected by qualified immunity from damages liability for this constitutional violation. This effectively eliminated that particular Fourth Amendment violation–the failure to knock and announce–from serving as the basis of section 1983 liability for the shooting. (See chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2016) on qualified immunity).

However, and crucial for present purposes, the Ninth Circuit concluded that the warrantless entry into the shack violated the Fourth Amendment and was not protected by qualified immunity. And even though the shooting was reasonable and not excessive under Graham v. Connor, 490 U.S. 386 (1989), the officers were still liable under the circuit’s provocation rule: they had intentionally and recklessly provoked the shooting by entering the shack without a search warrant in violation of the Fourth Amendment. In the alternative, the Ninth Circuit further reasoned that the officers were liable because they proximately caused the shooting of the plaintiff.

The Opinion in County of Los Angeles v. Mendez

The Court unanimously reversed. It rejected the Ninth Circuit’s provocation rule: “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” It emphasized that Graham v. Connor was the settled and exclusive framework for determining whether force used was excessive. This framework, focusing on the reasonableness of the force used, was objective in nature,  it addressed the facts and circumstances in each particular case and it determined reasonableness from the perspective of a reasonable officer on the scene, rather than with hindsight.

According to the Court, the Ninth Circuit’s provocation rule was inconsistent with Graham because it provided a “novel and unsupported path to liability” where the use of force was reasonable. The rule improperly “conflates distinct Fourth Amendment claims.” In so doing, it “permits excessive force claims that cannot succeed on their own terms.”

The Court then went on to reject the plaintiff’s attempts to limit the provocation rule to cases where (1) the separate constitutional violation creates the situation that led to the use of force and (2) the separate constitutional violation is committed intentionally or recklessly. Neither limitation solved the basic problem: the “unwarranted and illogical expansion of Graham.”

The Court concluded its analysis by reaffirming that the officers might conceivably be liable for damages proximately caused by their Fourth Amendment violation, namely, their warrantless entry into plaintiff’s shack. However, the Court emphasized that the proper proximate cause analysis “required consideration of the ‘forseeeability or the scope of the risk created by the predicate conduct,'” and the Ninth Circuit had not used this analysis in its alternative proximate cause ruling. Accordingly, the Court vacated the Ninth Circuit’s judgment and remanded to deal with the proximate cause issue.


1. The provocation rule was unique to the Ninth Circuit and its rejection in Mendez did not change section 1983 doctrine elsewhere.

2. The oral argument in Mendez focused on causation as well as the provocation rule. Several justices inquired into the proximate cause relationship between the failure to get a search warrant and the resulting (reasonable) use of deadly force. They asked whether the failure to get the search warrant made a difference in the plaintiff’s reaching for his BB gun, which resulted in the use of deadly force. They also asked whether the plaintiff’s reaching for his BB gun–and the officers’ subsequent use of deadly force–was within the scope of the risk created by the officers’ failure to get a search warrant. (This is classic tort law proximate cause talk).

These justices thereby appeared to signal to the lower courts and to the parties (on remand) that they were highly skeptical about the alleged proximate cause link between the failure to obtain a search warrant and the shooting of the plaintiff.

This is in contrast to the plaintiff’s far stronger proximate cause argument with regard to the risk of the plaintiff’s reaching for his BB gun–followed by the officers’ use of deadly force–that was created by the officers’ failure to knock and announce. But this Fourth Amendment violation was removed by the Ninth Circuit from the proximate cause analysis (and potential damages liability) by qualified immunity, as noted above.

3. Mendez did not change the circuits’ (and the Court’s) prevailing approach to proximate cause which focuses on reasonable foreseeability or the scope of the risk created by unconstitutional conduct. The results in individual cases may turn on how broadly or narrowly the scope of the risk created by the constitutional violation is defined. As in tort law, this is a question of policy.

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Written by snahmod

June 16, 2017 at 9:41 am

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