U.S. Supreme Court To Issue Opinion Concerning Qualified Immunity and the Provocation Rule

Posted on May 11th, 2017 by Derek P. Hartman

Recently, the issue of whether law enforcement officials are entitled to qualified immunity for a warrantless search was addressed in arguments made to the United States Supreme Court.  On March 22, 2017, the Supreme Court heard oral arguments in the case of County of Los Angeles v. Mendez.  The Mendez case involves two sheriff’s deputies whom, while looking for a missing parolee, opened the door of an occupied shack without a warrant and without knocking or announcing. When the occupant moved a BB gun to respond, the deputies immediately shot him and his pregnant companion. Both were awarded $4 million after a bench trial (Mendez’s leg was amputated below the knee; his companion delivered a healthy baby).

As a general rule, government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  Harlow v. Fitzgerald, 457 U.S. 800 (1982). The Mendez case involves application of the 9th Circuit Court of Appeals “provocation” theory that other Circuit Courts have either rejected or applied differently.  Under the “provocation” theory, a government official can be found liable if their actions recklessly provoked a violent confrontation by creating a situation which caused injury. “Provocation” theory opponents lambast the theory for being overly broad and unnecessary, as equitable results in civil actions can be achieved through basic notions of proximate cause. This case will likely establish a clear directive regarding the applicability of the “provocation” theory to qualified immunity.