Graham Upheld; Ninth’s Provocation Doctrine Rejected Unanimously

By Jim Glennon  |   May 31, 2017
Another win for the lady we serve.

I’m certainly no legal scholar. Haven’t been to law school. Never prosecuted a case or defended an offender. But I do have 30-plus years in law enforcement, a pretty good working understanding of laws, the Constitution, and, I believe, a fair share of common sense.

Back in 2002, the U.S. Court of Appeals for the 9th Circuit determined in a case titled Billington v. Smith, that the lawful use of deadly force by the police may be ruled unlawful if the police themselves “created the need to use force” by acting in an illegal manner.

They said: “Where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation the officer may be held liable for his otherwise defensive use of deadly force.” In other words, even if the use of force is acceptable under the Graham Standard (Graham v. Connor, 490 U.S. 386 (1989), a Fourth Amendment mistake made by the police prior to the lawful use of force can become unlawful because of that violation.

This came to be called the “provocation doctrine.” And in the Ninth Circuit it became a legal standard about which officers needed to be acutely aware.

The other day by a vote of 8-0, the U.S. Supreme Court overruled the 9th Circuit’s rationalization for the standard and now the provocation doctrine no longer exists in that Circuit and it eliminates any chance for it to become a national one.

Law enforcement is cheering the decision, while others—in particular those who see police as a menace to society—are incensed.

I’ve been talking about the so-called provocation doctrine and “officer created/induced jeopardy” for months now. Officer created/induced jeopardy is generally defined as: Situations where officers needlessly put themselves in danger, committing an unforced tactical error that makes them vulnerable and thus in a position where they must use deadly force to protect themselves.

My argument against using this doctrine to sue police punitively has always been the Monday-morning quarterbacking aspect. Graham specifically noted that; “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 court addressed this with their recognition that police involvement is not myopic, simple, or static. They went on: “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.”

Chief Justice Rehnquist who authored the decision concluded with, “The test of reasonableness is not capable of precise definition or mechanical application.”

In other words, there’s no cookie-cutter approach to every force event: “If A happens then the response must be B.” The “totality of the circumstances” at the moment the force decisions was made is what matters.

Going backward and looking for mistakes—decisions made or not made, with the benefit of hindsight—is contrary to Graham and opens up hindsight assessment of everything an officer did. Everything.

But not everyone agrees.

In February James Byrd, a 2L at Harvard Law School, wrote an article where he argued for the Provocation Doctrine: “… [T]he provocation rule helps realize the important principle that law enforcement should be held accountable for the harms caused by their flagrant civil rights violations. And because the rule merely makes explicit what courts generally hold to be self-evident—that parties who commit unlawful conduct are liable for the resulting injuries—the Supreme Court should uphold the doctrine.”

In a perfect algorithmic world that makes sense. But we don’t live in that world so I argue with his argument.

In the case just decided, the County of Los Angeles v. Mendez, the general facts are as follows.

  • In 2010, two Los Angeles County deputies were looking for a wanted subject spotted by a third party minutes earlier in front of a residence.
  • While looking through the backyard, without a warrant, the deputies came upon a shack.
  • Unbeknownst to them (according to the deputies) Angel Mendez and Jennifer Garcia were living in it with the permission of the home owner, technically making it a domicile.
  • Focused on finding the fugitive the deputies opened the door without knocking or announcing.
  • Mendez grabbed a BB gun and pointed it at the officers.
  • The deputies immediately fired as they were unaware that the gun was not real and shot both Mendez and Garcia multiple times in. Mendez’s right leg was amputated as a result of his injuries. Garcia was shot in the back.

A lawsuit was filed and the court entered a $4 million judgment against the County. While the use of force was found to be justifiable under Graham, the court invoked the Ninth Circuit’s “provocation doctrine,” which held the deputies liable because of the “independent Fourth Amendment violation.”

Byrd continues in his article: “The lower courts unsurprisingly had little difficulty finding that the proximate cause prong was met. The deputies’ warrantless and unannounced entry reasonably prompted Mr. Mendez to reach for his weapon, which, in turn, caused the deputies to shoot the Mendezes. Each link in the causal chain was the foreseeable consequence of its preceding link.”

Thus, when the Supreme Court rules on the issue later this term, it should affirm the Ninth Circuit accordingly.”

Well, they didn’t. And in a rare unanimous fashion, I might add.

Let me say that this. This is a terrible situation for all involved. I truly feel for the Mendez family. I can’t imagine if that happened to me or my loved ones. For them, this must be pure tragedy, and I understand why.

Now let’s look at it from the totality of the situation.

Byrd, as do others, frames the behavior of the deputies as reckless and/or an intentional disregard of the Constitution for “failing to get a warrant.”

I look at it as a mistake, but it may not even be that. According to the petition to consider for the Supreme Court, the Ninth Circuit “never resolved a Fourth Amendment claim based on facts preceding or following the alleged use of excessive force.”

I don’t know these officers at all, but I do understand the evolving dynamics of looking for a fugitive. They didn’t secure a warrant because they didn’t have time to do that. When someone calls and says, “Hey, this guy I know who is wanted was just in front of this house,” no law enforcement officer is going to spend the next three to six hours trying to get a search warrant for every house, shack, shed, or tent in the neighborhood to find a guy who was reported to be in plain view.

They saw a “shack” not a “house.” This was nothing, the record shows, that they considered to be a legal domicile. Thinking with common sense that the fugitive could be in it hiding next to the rakes and lawnmower, they opened the door.

And therein lies the problem with arguments made by very smart people like Mr. Byrd, Esq. The cops may have made a mistake, but it wasn’t a conscious disregard for the Fourth Amendment and the Constitution.

Here is my ultimate point. If law enforcement flagrantly disregards obvious laws, policies, and statutes, then there are means for punishment. But if cops think that by making mistakes—especially those in the many, many confusing gray areas of the law—they will be sued and lose their livelihoods, the results will be predictable: They’ll take zero risks.

Let’s look at this another way. Harvard attorney James Byrd’s stated opinion on this case was just flatly and unanimously denied by the Supreme Court. So, did he make a mistake in that opinion? If so, should his future opinions, made in a reasoned and intelligent fashion, under zero stress be disregarded?

Of course not.


People make mistakes. Cops too. (To be clear, I’m talking about the possible Fourth Amendment mistake here not the shooting itself.) Being on the street, making constant decisions is difficult. There are a ridiculous number of laws, case laws, and amendments.

It’s not as easy as many would have the public believe it is.

We have to have balance, and we have to have redress when mistakes are made. I believe that’s what Graham gives all of us.

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Jim Glennon
Lt. Jim Glennon (ret.) is the owner and lead instructor for Calibre Press. He is a third-generation LEO, retired from the Lombard, Ill. PD after 29 years of service. Rising to the rank of lieutenant, he commanded both patrol and the Investigations Unit. In 1998, he was selected as the first Commander of Investigations for the newly formed DuPage County Major Crimes (Homicide) Task Force. He has a BA in Psychology, a Masters in Law Enforcement Justice Administration, is the author of the book Arresting Communication: Essential Interaction Skills for Law Enforcement.